[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Rules and Regulations]
[Pages 66139-66199]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25261]
[[Page 66139]]
Vol. 78
Monday,
No. 213
November 4, 2013
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 224
Endangered and Threatened Species; Delisting of the Eastern Distinct
Population Segment of Steller Sea Lion Under the Endangered Species
Act; Amendment to Special Protection Measures for Endangered Marine
Mammals; Final Rule
Federal Register / Vol. 78 , No. 213 / Monday, November 4, 2013 /
Rules and Regulations
[[Page 66140]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 110901553-3764-02]
RIN 0648-BB41
Endangered and Threatened Species; Delisting of the Eastern
Distinct Population Segment of Steller Sea Lion Under the Endangered
Species Act; Amendment to Special Protection Measures for Endangered
Marine Mammals
AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic
and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Under the authority of the Endangered Species Act of 1973, as
amended (ESA), we, NMFS, issue this final rule to remove the eastern
distinct population segment (DPS) of Steller sea lion (Eumetopias
jubatus) from the List of Endangered and Threatened Wildlife. After
receiving two petitions to delist this DPS, we completed a review of
the status of the eastern DPS of Steller Sea Lion. Based on the
information presented in the Status Review, the factors for delisting
in section 4(a)(1) of the ESA, the recovery criteria in the 2008
Recovery Plan, the continuing efforts to protect the species, and
information received during public comment and peer review, we have
determined that this DPS has recovered and no longer meets the
definition of an endangered or threatened species under the ESA: It is
not in danger of extinction or likely to become so within the
foreseeable future throughout all or a significant portion of its
range. Thus, we find that the delisting of the DPS is warranted. This
rule also makes technical changes that recodify existing regulatory
provisions to remove special protections for the eastern DPS and
clarify that existing regulatory protections for the western DPS of
Steller sea lions continue to apply.
DATES: This rule becomes effective on December 4, 2013.
ADDRESSES: This final rule, references used herein, the related Status
Review, the related Post-Delisting Monitoring Plan, and additional
information supporting this final determination are available at:
http://www.alaskafisheries.noaa.gov/ and http://www.regulations.gov
[Docket No. NOAA-NMFS-2011-0208].
FOR FURTHER INFORMATION CONTACT: Dr. Lisa M. Rotterman, NMFS Alaska
Region, (907) 271-1692; Jon Kurland, NMFS Alaska Region, (907) 586-
7638; or Lisa Manning, NMFS Office of Protected Resources, (301) 427-
8466.
SUPPLEMENTARY INFORMATION:
ESA Statutory Provisions, Regulations, and Policy Considerations
The ESA regulations require that a species listed as endangered or
threatened be removed from the list if the best scientific and
commercial data available indicate that the species is no longer
endangered or threatened because it has recovered (50 CFR 424.11(c)).
Section 4(a)(1) of the ESA (16 U.S.C. 1533(a)(1)) states that we must
determine whether a species is endangered or threatened because of any
one or a combination of the following factors: (1) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (2) overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or man-made
factors affecting its continued existence.
Section 3 of the ESA defines a ``species'' as ``any subspecies of
fish or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature.''
Section 3 of the ESA further defines an endangered species as ``any
species which is in danger of extinction throughout all or a
significant portion of its range'' and a threatened species as one
``which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' Thus, we interpret an ``endangered species'' to be one that is
presently in danger of extinction. A ``threatened species,'' on the
other hand, is not presently in danger of extinction, but is likely to
become so in the foreseeable future (that is, at a later time). In
other words, the primary statutory difference between a threatened and
endangered species is the timing of when a species may be in danger of
extinction, either presently (endangered) or in the foreseeable future
(threatened).
Foreseeable Future
In the delisting process, NMFS determines whether the species'
abundance, survival, and distribution, taken together with the threats
(i.e., ESA section 4(a)(1) factors), no longer render the species in
danger of extinction or ``likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its
range.'' The duration of the ``foreseeable future'' is inherently fact-
specific and depends on the particular kinds of threats, life-history
characteristics, and specific habitat requirements for the species
under consideration. The existence of a potential threat to a species
and the species' response to that threat are not, in general, equally
predictable or foreseeable. Hence, in some cases, the ability to
foresee a potential threat to a species may be greater for certain
threats, and it may be greater than the ability to foresee the species'
exact response, or the timeframe of such a response, to that threat.
NMFS must utilize the best scientific and commercial data to assess
each threat and the species' anticipated response to each threat.
Significant Portion of Its Range
NMFS and the U.S. Fish and Wildlife Service (USFWS) recently
published a draft policy to clarify the interpretation of the phrase
``significant portion of the range'' (SPR) in the ESA definitions of
``threatened'' and ``endangered'' (76 FR 76987; December 9, 2011). The
draft policy consists of the following four components:
(1) If a species is found to be endangered or threatened in only an
SPR, the entire species is listed as endangered or threatened,
respectively, and the ESA's protections apply across the species'
entire range.
(2) A portion of the range of a species is ``significant'' if its
contribution to the viability of the species is so important that
without that portion, the species would be in danger of extinction.
(3) The range of a species is considered to be the general
geographical area within which that species can be found at the time
USFWS or NMFS makes any particular status determination. This range
includes those areas used throughout all or part of the species' life
cycle, even if they are not used regularly (e.g., seasonal habitats).
Lost historical range is relevant to the analysis of the status of the
species, but it cannot constitute an SPR.
(4) If a species is not endangered or threatened throughout all of
its range but is endangered or threatened within an SPR, and the
population in that significant portion is a valid DPS, we will list the
DPS rather than the entire taxonomic species or subspecies.
The Services are currently reviewing public comment received on the
draft policy. We therefore consider the draft policy as non-binding
guidance in evaluating whether to delist the eastern
[[Page 66141]]
DPS of Steller sea lions. In developing this final rule, we also
considered public comments on our evaluation of ``significant portion
of its range'' for this species.
Distinct Population Segment Policy
As noted above, the ESA defines ``species'' to include ``. . . any
subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature'' (16 U.S.C. 1532(16)). In 1996, NMFS and USFWS released a
joint policy on recognizing distinct vertebrate population segments to
outline the principles for identifying and managing a DPS under the ESA
(DPS Policy; 61 FR 4722; February 7, 1996). Under the DPS Policy, both
the discreteness and significance of a population segment in relation
to the remainder of the species to which it belongs must be evaluated.
A population segment of a vertebrate species may be considered discrete
if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same
taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the ESA.
If a population segment is considered discrete under one or more of
the above conditions, its biological and ecological significance is
then considered in light of Congressional guidance (see Senate Report
151, 96th Congress, 1st Session) that the authority to list DPSs be
used ``sparingly'' while encouraging the conservation of genetic
diversity. This consideration may include, but is not limited to, the
following:
(1) Persistence of the discrete population segment in an ecological
setting unusual or unique for the taxon,
(2) Evidence that loss of the discrete population segment would
result in a
significant gap in the range of a taxon,
(3) Evidence that the discrete population segment represents the
only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range, or
(4) Evidence that the discrete population segment differs markedly
from other populations of the species in its genetic characteristics.
ESA Listing History of Steller Sea Lions
On April 5, 1990, in response to a petition from the Environmental
Defense Fund and 17 other organizations, we published an emergency
interim rule to list the Steller sea lion as a threatened species under
the ESA and to request comment on whether the species should be listed
as threatened or endangered, possible causes of the decline, and
conservation measures and protective regulations needed to prevent
further declines (55 FR 12645). In that emergency interim rule, we held
that the Steller sea lion population was declining in certain Alaskan
rookeries (by 63% since 1985 and by 82% since 1960), the declines were
spreading to previously stable areas and accelerating, and significant
declines had also occurred on the Kuril Islands in Russia. Furthermore,
the cause of these declines could not be determined. NMFS concluded
that the emergency listing of the species as threatened on an interim
basis was therefore necessary and that the immediate implementation of
the protective measures of the ESA would aid recovery efforts.
That emergency interim rule implemented the following emergency
conservation measures to aid recovery: (1) Fishery observer efforts to
enable monthly estimates of the level of incidental killing of Steller
sea lions in observed fisheries; (2) aggressive enforcement of the
emergency regulation; (3) establishment of a recovery program,
including the establishment of a recovery team; (4) prohibition of
discharging a firearm near or at Steller sea lions; (5) establishment
of buffer zones around rookeries, none of which were within the
breeding range of the eastern DPS; and (6) establishment of a quota for
lethal incidental take in fisheries west of 141 [deg]W longitude.
On July 20, 1990, we published a proposed rule to list the Steller
sea lion as a threatened species (55 FR 29793), and on November 26,
1990, we published the final rule listing the Steller sea lion as
threatened under the ESA (55 FR 49204).
Identification of Eastern and Western DPSs and Maintenance of
Threatened Status for the Eastern DPS
At the time of the 1990 final rule to list, we considered all
Steller sea lions as a single species, including those in areas where
abundance was stable or not declining significantly, because scientists
did not have sufficient information to consider animals in different
geographic regions as separate species for ESA purposes. Similarly, the
first Steller Sea Lion Recovery Plan, released in 1993, did not
distinguish two separate population segments, but identified recovery
tasks, reclassification criteria, and delisting criteria for the
species as a whole. In 1993, we initiated a status review to determine
whether a change in listing status was warranted (58 FR 58318; November
1, 1993). In 1994, we re-convened the Steller Sea Lion Recovery Team
(Team) specifically to consider the appropriate listing status for the
species and to evaluate the adequacy of ongoing research and
management. The Team recommended that NMFS recognize two DPSs, east and
west of 144 [deg]W, based on demographic and genetic dissimilarities,
elevate the listing status of the western DPS to endangered, and keep
the eastern DPS listed as threatened. In 1997, we formally identified
two DPSs of Steller sea lions under the ESA: A western DPS and an
eastern DPS (62 FR 24345; May 5, 1997). The eastern DPS consists of all
Steller sea lions from breeding colonies located east of 144 [deg]W
longitude, and the western DPS consists of all Steller sea lions from
breeding colonies located west of 144 [deg]W longitude (50 CFR 223.102;
50 CFR 224.101(b)). We classified the western DPS as endangered due to
its persistent population decline, and we maintained a status of
threatened for the eastern DPS. In the discussion underlying our
decision to continue to list the eastern DPS as threatened under the
ESA, and in response to comments indicating that we should delist this
species, we noted that the ``Team . . . agreed that there was continued
concern for the eastern population segment . . . despite the fact that
its current abundance may be stable'' (62 FR 24347; May 5, 1997).
Further information on the identification and listing of the two
population segments may be found in the final rule (62 FR 24345; May 5,
1997) and in the Status Review (NMFS 2013a).
Recovery Plan
As required under the ESA, the Recovery Plan (NMFS 2008) for both
the eastern and the western DPSs of Steller sea lions includes
specific, objective, measurable criteria for determining when the
eastern DPS has recovered sufficiently to warrant delisting. In the
Recovery Plan, we (NMFS 2008:VII-2) specified that these ``. . .
recovery criteria comprise the core standards upon which the decision
to delist will be based.'' The plan includes both demographic
(biological) and listing factor (threats-based) recovery criteria.
[[Page 66142]]
The Recovery Plan includes one demographic criterion requiring that
the eastern DPS of Steller sea lions increase at an average annual
growth rate of three percent per year for 30 years. NMFS (2008)
specified that this time period reflects three generations, provides
confidence that the increase in natality (the ratio of live births to
the larger population) and survival support the population growth rate,
and indicates that the recovery is robust enough to sustain the
population over multiple environmental regimes. While the Recovery Plan
acknowledges concern over the performance of rookeries and haulouts in
the southern end of the range in California, it does not contain
recovery criteria for sub-regions within the range of the eastern DPS,
noting that it is not unusual for the geographical limit of a species
range to perform more poorly than the core regions.
The Recovery Plan also specifies ESA threats-based recovery
criteria, organized by the ESA section 4(a)(1) factors, that should be
achieved in order to delist the eastern DPS. As identified in the
Status Review (NMFS 2013a) these are as follows:
(1) Marine habitats, particularly in regard to prey populations,
must be maintained through appropriate fisheries management and control
of contaminants.
(2) Rookery and haulout sites need to be adequately protected
(through state, federal, or private measures) to ensure the continued
use of these sites for pupping, breeding, attending young, and resting.
Research and monitoring plans should be in place for all projects that
have a high probability of negatively impacting sea lions so that these
activities do not harm sea lions or their habitat.
(3) Agreement is reached with the State of Alaska which describes
its fishery management plan, minimizes the take of Steller sea lions,
and describes how future actions taken by the State will comport with
the ESA and MMPA.
(4) A Steller sea lion recovery coordinator is on staff at NMFS.
(5) An outreach program is established to educate the public,
commercial fishermen and others on the continued need to conserve and
protect Steller sea lions.
(6) An Alaska stranding network is in place and functional.
Based on a review of these recovery criteria and on new information
that has become available since publication of the 2008 Recovery Plan,
we conclude that these criteria together with the five factors
specified in section 4(a)(1) of the ESA remain appropriate standards on
which to base the decision whether to delist this species.
Status Review and Petitions To Delist
On June 29, 2010, we initiated the first 5-year status review of
the eastern DPS of Steller sea lions under the ESA, with a technical
correction issued eight days later (June 29, 2010, 75 FR 37385; July 7,
2010, 75 FR 38979). A 5-year status review is intended to ensure that
the listing classification of a species is accurate and is based on the
best scientific and commercial data available. During the initial
comment period following the initiation of the 5-year review, we
received two petitions to delist this species: One on August 30, 2010,
from the States of Washington and Oregon; and one on September 1, 2010,
from the State of Alaska. Both petitions contended that the eastern DPS
of Steller sea lions has recovered, is not in danger of extinction, and
is not likely to become endangered within the foreseeable future.
Based on the information presented and referenced in the petitions,
as well as other information, we found that the petitions presented
substantial information indicating that the petitioned action may be
warranted (75 FR 77602, December 13, 2010). Thus, we provided notice
that we were continuing the status review of the eastern DPS to
determine if the petitioned action was warranted. We completed a draft
status review report (Status Review) to address all issues required in
a 5-year review and to inform a determination of whether delisting is
warranted. The draft Status Review underwent independent peer review by
four scientists with expertise in population ecology and management of
eastern DPS Steller sea lions.
On April 18, 2012, we released a draft Status Review of the eastern
DPS of Steller sea lion. This draft Status Review contained a draft
post-delisting monitoring plan (PDMP) as an appendix. Concurrently, we
published a proposed rule to remove this DPS from the List of
Endangered and Threatened Wildlife (77 FR 23209; April 18, 2012). We
requested public comment on all of these documents, and we sought
additional peer review by seven scientists with relevant expertise.
Review of the Species Delineation
As part of the Status Review, we applied the DPS policy (61 FR
4722; February 7, 1996) to determine whether the current distinction
remained appropriate and whether other DPSs may exist. Below are the
main conclusions of the analysis. More detail is given in the proposed
rule (77 FR 23209; April 18, 2012) and the Status Review (NMFS 2013a).
The analysis confirmed that the currently recognized eastern DPS is
both discrete and significant and thus continues to meet the criteria
of the DPS Policy. The analysis also included a review of the best
available information to evaluate whether Steller sea lions that breed
in Washington, Oregon, and California adjacent to the California
Current, and whether those that breed in California, meet the criteria
for identification as a DPS. We first evaluated whether there was
evidence that these sea lions were discrete from Steller sea lions that
breed farther north, including from those in southeast Alaska, as a
consequence of physical, physiological, ecological, or behavioral
factors. We did not find compelling scientific evidence of consistent
or marked discontinuity among different segments within the currently
recognized eastern DPS of Steller sea lion. The best available evidence
indicates that Steller sea lions that breed in California, Oregon, and
Washington are not markedly separated from Steller sea lions in British
Columbia and southeast Alaska as a consequence of physical,
physiological, ecological, or behavioral factors. The best available
evidence about genetic patterns, ecology, movement patterns and
putative subspecies identity also does not indicate that Steller sea
lions that breed in California are discrete from those in the rest of
the eastern DPS.
According to the DPS Policy, if a population segment is considered
discrete, its biological and ecological significance to the taxon as a
whole is then considered (61 FR 4722; February 7, 1996). Since we
concluded that there are not population segments within the currently
recognized eastern DPS of Steller sea lion that are discrete, we did
not consider the biological and ecological significance of any subunits
relative to a determination of DPS status.
Biology and Ecology
A review of the taxonomy, life history, and ecology of the eastern
DPS of Steller sea lion is presented in the Status Review (NMFS 2013a)
and the Recovery Plan (NMFS 2008). We do not repeat that information
here.
Evaluation of the Demographic Recovery Criterion
In order to make our evaluation of the demographic recovery
criterion transparent, and to describe the basic trend of this DPS, we
briefly explain below the way in which population abundance is
estimated for Steller sea
[[Page 66143]]
lions; discuss uncertainties associated with the estimates; identify
data available on which to evaluate trends in abundance; and summarize
the information available from pup and non-pup count data. We provide a
summary of trends over time for the population as a whole. More
detailed data from pup and non-pup counts over time in subareas
(southeast Alaska, British Columbia, Washington (non-pup counts only),
Oregon, and California) are provided in the Status Review (NMFS 2013a)
and elsewhere (e.g., Pitcher et al. 2007; DFO 2008; Johnson and Gelatt
2012).
Two types of counts are used to study trends in Steller sea lion
populations: counts of pups of up to one month of age and counts of
non-pups (Pitcher et al. 2007; Olesiuk et al. 2008; NMFS 2008; DeMaster
2009). NMFS currently monitors Steller sea lion status by counting
animals during the breeding season at trend sites in conjunction with
State and other partners. Trend sites are a set of terrestrial
rookeries and haulouts where surveys have been consistently undertaken
for many years and where the vast majority (over 90%) of all sea lions
counted during surveys are observed (NMFS 2008, 2010). Breeding season
surveys have been conducted opportunistically and not all sites have
been surveyed each season.
The vast majority of Steller sea lion pups are born at a relatively
small number of rookeries and are on land for the first month on their
life (Pitcher et al. 2007; NMFS 2008). Thus, counts of pups on
rookeries conducted at the end of the birthing season are nearly
complete counts of pup production. In the Recovery Plan, we noted that:
These counts can be expanded to estimate approximate total
population size based on an estimated ratio of pups to non-pups in
the population (Calkins and Pitcher 1982; Trites and Larkin 1996).
Based on estimates of birth rate and sex and age structure of a
stable sea lion population from the Gulf of Alaska, Calkins and
Pitcher (1982) estimated total population size was 4.5 times the
number of pups born. Some pups die and disappear before the counts
are made and a few are born after the counts are conducted (Trites
and Larkin 1996); because of this the researchers selected 5.1 as a
correction factor. It should be emphasized that this is a very
general estimate of population size as several factors can affect
the accuracy of this correction factor. Sex and age structure and
mortality and birth rates may vary over time and among populations
and require different correction factors (NMFS 2008: I-6).
The Department of Fisheries and Oceans Canada (DFO) discussed and
acknowledged uncertainty in estimates of pup production and uncertainty
associated with extrapolating total abundance from estimates of pup
production (DFO 2008). To the extent that the actual demographic
characteristics of a population deviate from those assumed for the
purposes of estimation, error or biases may be introduced into the
estimate. We discuss this issue further in the Status Review (NMFS
2013a).
At the time of finalization of the Recovery Plan (NMFS 2008), the
analyses of trend data throughout the range of the eastern DPS provided
in Pitcher et al. (2007) represented the best available data for the
population overall and for many of the subareas. Based on the
comprehensive eastern DPS range-wide survey conducted in 2002, Pitcher
et al. (2007) estimated that about 11,000 pups were produced in the
eastern DPS in 2002. They provided what they emphasized should be
regarded as a general estimate of total abundance for this DPS of about
46,000-58,000, noting that several factors can affect the accuracy both
of the counts and of correction factors applied during estimation. In
their estimate of pup production, upon which the estimate of total
abundance is based, Pitcher et al. (2007:112) followed Trites and
Larkin (1996) and added 10% to the pup counts, an adjustment they
stated ``seems reasonable'' but which is ``subjective and arbitrary''
since the real adjustment likely varies both spatially and temporally.
They used sensitivity analysis to delineate the possible range of
changes in the correction factors and discussed biases in the estimates
given certain assumptions regarding population productivity and growth.
Pitcher et al. (2007) estimated that, for the 25-year period between
1977 and 2002, overall abundance of the eastern DPS of Steller sea lion
had increased at an average rate of 3.1% per year.
New pup and non-pup count data since Pitcher et al.'s (2007)
analyses are available from all portions of the range including
southeast Alaska (DeMaster 2009), British Columbia (Olesiuk 2008; P.
Olesiuk, pers. comm.), Washington State (S. Jeffries, unpublished
data), Oregon (B. Wright and R. Brown, pers. comm.), and California
(NMFS unpublished data). When these new data are added to Pitcher et
al.'s (2007) time series of surveys, the interval over which we can
assess population trends is lengthened, and confidence that the
positive trend is real and sustained is increased.
Johnson and Gelatt (2012) provided a new analysis of eastern DPS
abundance trends from 1979-2010 using models for each subarea
(southeast Alaska, British Columbia, Washington (non-pups only),
Oregon, and California). Since the demographic recovery criterion
described the growth of the sum of the subareas, but counts generally
were not conducted in the same years, this analysis was developed to
allow for the analysis of ``. . . growth trends of the abundance of an
entire population when censuses have been conducted at disparate times
on subpopulations with possibly differing annual rates of growth (or
decline)'' (Johnson and Gelatt 2012:1). Their estimates of population-
wide growth rate, based upon pup counts, indicates that the eastern DPS
increased from an estimated 18,313 animals in 1979 (90% confidence
interval (CI): 16,247-20,436) to 70,174 animals in 2010 (90% CI =
61,146-78,886). The estimated annual growth rate of the eastern DPS
from 1979-2010 was 4.18% with a 90% CI of 3.71%-4.62%. The probability
that the growth rate exceeded 3% was 0.9999 (Johnson and Gelatt 2012).
Most of the overall increase in estimated population abundance from
1970-2010 was due to increases in the northern portion of the range in
southeast Alaska and British Columbia (first pup count used in analysis
from 1982). However, data in Johnson and Gelatt (2012) indicate that
pup counts in Oregon (at least since 1990) and California (at least
since 1996) also increased. More detail is provided in Johnson and
Gelatt (2012), the Status Review (NMFS 2013a), and elsewhere e.g.,
Fritz et al. 2008; Olesiuk 2008 pers. comm.; DeMaster 2009; NMML 2012).
Based on non-pup count data, which include new count data provided
by Washington (1989-2011), Oregon (1976-2008), DFO (1971-2010), NMFS
(for southeast Alaska, 1979-2010), and California (1990-2011), the
estimated annual growth rate for the eastern DPS as a whole from 1979-
2010 is 2.99% (90% CI = 2.62%-3.31%; see Figure 2 in Johnson and Gelatt
2012).
Thus, the estimated trends in abundance for the total eastern DPS
indicate that the population increased at an annual rate of about 3%
(based on estimated trends in non-pup counts) or more (based on
estimates of population size from pup counts) between the late 1970s
and 2010, a period of more than 30 years. Hence, despite uncertainty
about the actual numbers of Steller sea lions in the eastern DPS, NMFS
is confident about the magnitude and direction of the trend in
abundance over this period. These data indicate that the demographic
(or biological) recovery criterion specified in the Recovery Plan has
been met.
Goodman (2006) conducted an analysis of the extinction risk of the
eastern DPS of Steller sea lion using two
[[Page 66144]]
series of data related to population trend: 1) 24 counts, conducted
annually except for missing counts in 1978 and 1991, of non-pups from
Oregon sites from 1977-2002, and 2) nine counts of pups at southeast
Alaska sites from 1979-2002. Goodman concluded that probability of low
growth rates is very small, and that if his working hypothesis to
account for the observations was and continues to be true, the near and
mid-term risks of extinction are very low. Since 2002, NMFS has
undertaken additional aerial surveys of pups in southeast Alaska,
generally on a biennial basis. The most recent pup counts available for
consideration in this decision were conducted in 2009, and trends from
these data are summarized in the Status Review (NMFS 2013a). These data
show that the positive growth rates apparent at the time of Goodman's
analysis have continued with a very strong upward trend in pup
production in this region since 2002. Likewise, more recent data from
Oregon show continued population growth. The final count for 2003 was
anomalously high at 5,714 non-pups counted and, in that year, increases
in non-pup numbers were seen at multiple locations throughout the
state. The count for 2005 was incomplete due to poor weather. Counts
for 2006 and 2008 indicate that the non-pup abundance trajectory
generally follows the upward trend line depicted in Pitcher et al.
(2007) (B. Wright, ODFW, pers. comm.; more details can be found in the
Status Review (NMFS 2013a)). Based on the continued upward trend in
both data sets, we concur with Goodman's conclusion that the risk of
near-term and mid-term extinction is very low for this DPS.
Evaluation of the ESA Section 4(a)(1) Factors and Associated Recovery
Criteria
We reviewed the status of the eastern DPS in the context of the ESA
listing factors and the associated criteria set forth in the Recovery
Plan (NMFS 2008). Below we summarize information regarding the status
of the DPS according to each of the ESA section 4(a)(1) factors and
identify the steps taken by NMFS and others to accomplish recommended
actions set forth in the Recovery Plan. More detailed information can
be found in the Status Review (NMFS 2013a).
Factor A: The Present or Threatened Destruction, Modification, or
Curtailment of a Species' Habitat or Range
In the 2008 Recovery Plan, NMFS (2008a:VII-1) concluded that ``At
present, the most likely threats'' ``are development, increased
disturbance and habitat destruction, increases in magnitude or
distribution of commercial or recreation fisheries, and environmental
change.'' The Status Review identified the following residual and/or
emerging potential future sources of threat under this factor: Global
climate warming and ocean acidification; indirect fisheries
interactions; coastal development and disturbance; toxic substances;
and oil and gas development. We considered each of these threats based
on information and analysis in the Recovery Plan (NMFS 2008) and
updated in the Status Review (NMFS 2013a).
Based on the available information, certain global warming and
ocean acidification effects are likely already being manifested within
the California Current Ecosystem and possibly other marine ecosystems
in the eastern North Pacific, of which the eastern DPS of Steller sea
lion is a part, and data indicate that ecosystems in the range of the
eastern DPS will continue to be affected by these factors by the end of
the century. The California Current System may be particularly
vulnerable to climate change and ocean acidification effects. The
northward shift of the range of this DPS may be, at least in part, a
result of climate change. However, given the increasing population
trends of the eastern DPS of Steller sea lion, the robust reproduction
over a large range from Oregon to southeast Alaska, and the relatively
large population size, the available information suggests that global
warming and ocean acidification are not currently impeding this
population's overall recovery or viability. In contrast, the best
scientific and commercial data available indicate that global climate
change is having, and will have, negative impacts on ice-dependent
species, such as polar bears, ringed seals, and bearded seals.
Global climate warming and ocean acidification pose a potential
threat to Steller sea lions from potential food web alteration, direct
physiological impacts on prey species, or more generally, due to
changes in the composition, temporal and spatial distribution, and
abundance of prey. If the underlying food webs are affected by ocean
acidification and climate change, this DPS of Steller sea lions would
also likely be affected. However, consideration of this issue is
complicated by the rapidly evolving understanding of this complex
threat, the uncertainty about how Steller sea lions might respond, and
the inability to predict a response by the eastern DPS reliably within
the foreseeable future. Clearly, the issue is not specific to Steller
sea lions or their habitat. The magnitude and timing of ecological
change in the different parts of the range of the eastern DPS from
these two factors and, more importantly, the ways in which such change
will affect the eastern DPS of Steller sea lion at the population
level, are not yet predictable. Thus, while NMFS is concerned about
multi-faceted adverse impacts of climate change and ocean acidification
over the next 50-100 years on marine ecosystems of which this DPS is a
part, based on the best scientific and commercial data available, we
cannot accurately predict the impacts of these factors on the eastern
DPS of Steller sea lions or their primary prey during this time period.
Thus, in the absence of substantial information to the contrary, we
conclude that global warming and ocean acidification are not likely to
cause the eastern DPS of Steller sea lion to become in danger of
extinction throughout all or a significant portion of its range within
the foreseeable future.
Numerous federal, state, and/or provincial commercial fisheries,
recreational fisheries, and subsistence fisheries exist within the
range of the eastern DPS of Steller sea lion. These include fisheries
for salmon, herring, demersal shelf rockfish, ling cod, and black and
blue rockfish in state waters of southeast Alaska; herring, hake,
sardines, salmon, and groundfish in British Columbia; salmon and
herring in state waters off Washington and Oregon; and groundfish along
the U.S. west coast. Mechanisms by which fisheries can have indirect
effects (e.g., nutritional stress) on Steller sea lions have been
reviewed extensively in the scientific literature and in recent NMFS
actions (e.g., 75 FR 77535; December 13, 2010). Given the sustained
significant increases in non-pup abundance and increases in pup
production of eastern DPS Steller sea lions concurrent with the ongoing
prosecution of these fisheries, and given current and anticipated
fisheries management procedures and regulatory mechanisms, there is no
indication that fisheries are competing with eastern DPS Steller sea
lions to the point where it constitutes a threat to the survival or
recovery of the eastern DPS of Steller sea lions. Due to increasing
numbers of Steller sea lions in some locations, and increasing numbers
of California sea lions in others, the effects of competition with
fisheries may increase in the future as the number of animals competing
for the same prey increases or if there is habitat degradation or other
factors that
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lead to prey declines. However, given current information, we conclude
the current management of those fisheries is not likely to cause the
eastern DPS to become in danger of extinction within the foreseeable
future throughout all or a significant portion of its range.
Coastal development, tourism, industry, shipping, and human
population growth may lead to more noise, human presence and other
outcomes that increase disturbance of Steller sea lions on terrestrial
sites or in the water, or to their prey. However, protections against
such disturbance exist and will likely remain in place under a variety
of state and federal statutes. Following delisting, significant
regulatory mechanisms under the Marine Mammal Protection Act (MMPA) and
other laws will provide a means to reduce or minimize possible adverse
effects of disturbance from human activity. These mechanisms provide
protections against human disturbance for Steller sea lions on coastal
haulouts and rookeries, and in other habitats. The prohibitions and
penalties related to ``take'' under the MMPA are particularly relevant
(16 USC 1371(a)), as is our ability to require mitigation in
authorizations of take incidental to other activities such as shipping,
tourism, or coastal development. To authorize any such take, we must
find that it will have no more than a negligible impact, which NMFS
regulations define as ``an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival'' (50 CFR 216.103). In addition, we must
prescribe permissible methods of taking, as well as other means of
having the least practicable adverse impact on affected marine mammal
stocks. We must also impose monitoring and reporting requirements. We
conclude that there is no current evidence indicating that human
disturbance of Steller sea lions on or near coastal habitats is likely
to cause the eastern DPS of Steller sea lion to become in danger of
extinction throughout all or a significant portion of its range within
the foreseeable future.
Toxic substances may adversely affect eastern DPS Steller sea
lions, although much remains to be learned about the levels of a suite
of contaminants, related physiological mechanisms, and the
reproduction, health and survival consequences of such substances
(Atkinson et al. 2008; Meyers et al. 2008; Barron et al. 2003). In the
past two decades there has been an emerging understanding that
contaminants, especially those that bioaccumulate and are persistent,
can pose a risk to the reproductive success and health of marine
mammals (e.g., Ross et al. 1995; Beckmen et al. 2003; Hammond et al.
2005). Studies conducted in southern and central California (Sydeman
and Jarman 1988; DeLong et al. 1973; Le Boeuf et al. 2002: Ylitalo et
al. 2005; Blasius and Goodmanlowe 2006; and see Heintz and Barron 2001
for review) have recognized the potential for adverse consequences of
high levels of contaminants in pinnipeds in this more industrialized
portion of their range. However, this potential for negative impacts is
in contrast to the robust populations of some species of pinnipeds in
these areas. Thus, while a body of literature on Steller sea lions and
other pinnipeds suggests that toxic substances may have been a factor
that adversely affected Steller sea lions in some parts of California,
in most of the range of this DPS, if toxic compounds have affected
reproduction or survival, the effects have not been sufficient to
impede sustained recovery, and they have not been sufficient to impede
the overall recovery of this DPS. While there is uncertainty concerning
the potential for toxic substances to affect reproduction, survival,
and population increase in the southern part of the range of this
species, the best scientific and commercial data available do not
indicate that toxic substances are likely placing this population in
danger of extinction throughout all or a significant portion of its
range or likely to become such within the foreseeable future.
Oil and gas activity such as exploration, production, and
transportation of petroleum products within the eastern DPS Steller sea
lion range has the potential to adversely affect animals within this
DPS due to disturbance or pollution in the event of spills. The most
significant effects could result if repeated disturbances or a large
spill were to occur near large rookeries. Large oil and fuel spills
have occurred in the past in multiple locations within the range of
this DPS. Based on current information, the risks posed by such events
do not place this species in danger of extinction throughout all or a
significant portion of its range or make it likely that it will become
so within the foreseeable future.
Based on the considerations for Factor A summarized above, and the
additional information provided in the Status Review (NMFS 2013a), we
conclude that the eastern DPS of Steller sea lion is not in danger of
extinction throughout all or a significant portion of its range, nor
likely to become so within the foreseeable future due to the present or
threatened destruction, modification, or curtailment of its habitat or
range.
The Recovery Plan (NMFS 2008: VII-4) states that ``To provide
assurance that delisting is warranted for'' this DPS, ``. . . threats
to its habitat should be reduced as specified under this factor:
1. Marine habitats, particularly in regard to prey populations,
must be maintained through appropriate fisheries management and control
of contaminants.
2. Rookery and haulout sites need to be adequately protected
(through state, federal, or private measures) to insure the continued
use of these sites for pupping, breeding, attending young, and resting.
Research and monitoring plans should be in place for all projects that
have a high probability of negatively impacting sea lions in order to
make sure that these activities do not result in harm to sea lions or
their habitat.''
We identified research and management programs in the Status Review
(NMFS 2013a) that help to protect Steller sea lion habitat from adverse
effects due to fisheries, coastal development, and other threats, as
detailed above for Factor A and below for Factor D. We conclude the
recovery criteria and recovery actions recommended under this listing
factor have been accomplished and will continue to be accomplished on
an ongoing basis.
Factor B: Overutilization for Commercial, Recreational, or Educational
Purposes
In the Recovery Plan, NMFS (2008:VI-3) summarized that prior to the
MMPA there were both sanctioned and unsanctioned efforts by fishermen
and others to control Steller sea lions in the United States, and the
killing of sea lions by fishermen and others was commonplace.
Additionally, in British Columbia, government control programs killed
thousands of Steller sea lions on rookeries and haulouts from 1912
through 1968 (Bigg 1985). By 1970, when sea lions were given protection
in Canada, the population had been reduced by about 70%, and one
rookery had been eliminated (Olesiuk 2001).
Current documented sources of direct human-caused mortality of
Steller sea lions include subsistence harvests, incidental takes in
fisheries, illegal shooting, entanglement in marine debris, and take
during scientific research. There are currently no commercial harvests
or predator control programs in the United States in which Steller sea
lions are authorized to be killed. Killing harbor seals and California
sea lions at aquatic farms is
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authorized by license in Canada, but lethal control of Steller sea
lions has been prohibited in Canada since 2004. DFO (2010) noted that
Steller sea lions could be shot as a result of being misidentified as
either a harbor seal or California sea lion, but they assessed the
current level of concern for this threat as negligible. Available
information indicates that subsistence harvest rates remain very low
and not likely to cause this population to become in danger of
extinction within the foreseeable future throughout all or a
significant portion of its range.
While Steller sea lions are taken incidentally by commercial
fisheries, the known mortality level from this source is relatively
small compared to the species' potential biological removal (PBR). We
are, however, uncertain about the actual levels of take of eastern DPS
Steller sea lions in fisheries for a variety of reasons. Estimates of
fishery-related mortality based on stranding data are considered
minimum estimates, because not all stranded animals are observed or
reported and not all entangled animals strand (Allen and Angliss 2011).
Recent observer data are not available from many fisheries within the
U.S. range. The number of Steller sea lions taken in Canadian waters is
not known (Allen and Angliss 2011). On the other hand, we are not aware
of any information to suggest that the numbers of eastern DPS Steller
sea lions taken incidental to commercial fishing will increase
appreciably within the foreseeable future. Thus, there is no evidence
indicating that the estimated level of incidental take in commercial
fishing is likely to cause the eastern DPS of Steller sea lion to
become in danger of extinction throughout all or a significant portion
of its range within the foreseeable future.
Entanglement of Steller sea lions in packing bands, discarded
fishing gear, rope, hooks, and flashers may be reported through the
Marine Mammal Stranding Network, field studies, or by opportunistic
sightings. Such entanglement can lead to serious injury and mortality.
While we are concerned about entanglement and are working with the
States and others to reduce it, we are not aware of data that indicate
that effects from entanglement are likely to cause this species to
become in danger of extinction within the foreseeable future throughout
all or a significant portion of its range.
While only minimum estimates of illegal take (e.g., shootings) of
Steller sea lions are available, the estimated level of this illegal
take is not likely to pose a threat to this population. Allen and
Angliss (2012:19) reported that the minimum estimated U.S. commercial
fishery-related mortality and serious injury for this DPS (17.0) is
less than 10% of the calculated PBR (200) and, therefore, can be
considered to be insignificant and approaching a zero mortality and
serious injury rate. The estimated annual level of total human-caused
mortality and serious injury is 45.8 for commercial and recreational
fisheries, 11.9 for subsistence, and 1.4 for other human-caused
mortality, for a total of 59.1. Thus, given the size of the population,
the estimated levels of such take are unlikely to place this species in
danger of extinction within the foreseeable future throughout all or a
significant portion of its range.
The Recovery Plan does not specify recovery criteria under this
factor. Research and management programs are in place, or will be put
in place post-delisting (e.g., in the PDMP), to monitor and regulate
the threats identified under this factor. Consistent with the primary
goals of the MMPA, these programs reduce the magnitude of the above
types of takings. We will continue to monitor take in selected
fisheries and will, as recommended in the Recovery Plan (NMFS 2008),
work cooperatively with the States to implement observer programs and
other means to identify, evaluate, and reduce levels of uncertainty in
the estimates of incidental taking by commercial fishing.
Factor C: Disease, Parasites, and Predation
In the Recovery Plan, NMFS (2008) concludes that no criteria are
necessary to reduce disease or predation. The plan briefly discusses
the parasites that have been found in eastern DPS Steller sea lions and
states that although research is needed, there is no available
information to suggest that parasitic infections are limiting
population growth. The plan summarizes that, while Steller sea lions
are taken by killer whales throughout their range, there is no
indication that killer whale predation is outside normal levels
expected in this population at their abundance level. NMFS (2008:VI-2)
also notes that previous authors (Long and Hanni 1993) suggested that
``. . . white shark predation could impede recovery of Steller sea
lions in California if the number of sea lions declines further and the
shark population continues to increase.'' There is no new information
since the Recovery Plan indicating a greater threat from predation. We
conclude that predation is not limiting recovery (NMFS 2008, 2013a).
With respect to disease, the Recovery Plan (NMFS 2008:VI-4) states:
``Whereas exposure to many disease agents has been identified in
Steller sea lions, little is known about the disease agents themselves
or how they may impact the sea lion populations, and no evidence has
been found of disease limiting population growth.'' Based on the
information available at that time, NMFS (2008) stated that the
diseases known to occur in this DPS appear to be limited to those
endemic to the population and they are unlikely to have population
level impacts.
New information indicates that the threat of exposure to novel
disease vectors is higher now than was known at the time the Recovery
Plan was completed. This increased threat is due to the documented
infection and exposure of Steller sea lions to at least one infectious,
and possibly pathogenic, virus (phocine distemper virus (PDV), which
may be novel to them (Goldstein pers. comm. and unpublished data; see
also Goldstein et al. 2009); the emergence and/or the detection of
other disease agents infecting other species of marine mammals within
their range (e.g., toxoplasmosis; Conrad et al. 2005); increased
crowding at some rookeries that may result in increased incidences of
density-dependent related disease (e.g., as Spraker et al. (2007) have
suggested for the hookworm/bacteremia complex in California sea lions);
and climatic and oceanic changes that may enhance the probability of
Steller sea lion exposure to novel disease agents (e.g., Lafferty and
Gerber 2002).
The marine environment of the eastern North Pacific is changing and
is likely to change in the future due to global warming and related
changing ocean conditions (see section on Climate Change and Ocean
Acidification). There is growing understanding of ways in which climate
change, other environmental change, and stress may increase disease
risk. Lafferty and Gerber (2002) concluded that key threats to
biodiversity, such as climate change, resource exploitation, pollution,
and habitat alteration can affect the transmission of an infectious
disease; introduced pathogens can make abundant species rare;
conditions that cause stress may increase susceptibility to disease;
cross-species contact may increase transmission; and pathogens are of
increasing concern for conservation. Climate change can lead to shifts
in the range of the eastern DPS of Steller sea lion or in the range of
other species. Such range shifts increase the likelihood that Steller
sea lions will be exposed to novel disease agents (e.g., Lafferty and
Gerber 2002; Goldstein et al. 2009a). The entry of PDV into the North
Pacific may have
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occurred due to global warming (Goldstein 2009b). Archived samples
(primarily from animals in the Aleutians and Prince William Sound) from
Steller sea lions collected since 2001 tested positive across several
locations and sampling years (T. Goldstein, unpublished data). Goals of
current research include determining how widespread PDV is in Steller
sea lions across their range and whether this viral infection may be
affecting the health of Steller sea lions (T. Goldstein, pers. comm.).
Studies of pinnipeds in the North Atlantic indicate the effects of
exposure to PDV have ranged from large scale epidemics in Atlantic
harbor seals to no detectable population impacts in other species
(e.g., see Dietz et al. 1989, Heide-Jorgensen et al. 1992; Harding et
al. 2002; Jensen et al. 2002; H[auml]rk[ouml]nen et al. 2006).
Additional information on this virus and other novel disease agents
that have been detected within the range of the eastern DPS is provided
in the Status Review (NMFS 2013a).
We conclude that the risk of disease to eastern DPS Steller sea
lions is likely higher than was known at the time of the Recovery Plan,
and it is likely to increase over time due to increased crowding and,
especially, due to the emergence of novel disease vectors. The
available information available, however, does not indicate that
disease is causing population-level effects in the eastern DPS, either
alone or in combination with other threats. We recognize the need to
continue to test and monitor for the presence of novel and potentially
threatening disease agents and have included disease surveillance and
parasite studies as components of the PDMP (NMFS 2013b). Through
established programs such as Marine Mammal Stranding Networks and
ongoing collaborative research, routine sampling to monitor the
occurrence of PDV and other diseases will continue, and appropriate
responses (e.g., Unusual Mortality Event response) to critical events
(e.g., a disease epidemic) will be implemented if the need arises.
Factor D: The Inadequacy of Existing Regulatory Mechanisms
To fully evaluate the adequacy of existing regulatory mechanisms,
we considered the existing protections in light of identified threats
discussed in Factors A through E. The MMPA establishes a moratorium on
the taking and importation of marine mammals and marine mammal
products, with some exceptions. Under the MMPA, the term ``take'' means
to harass, hunt, capture, or kill, or attempt to harass, hunt, capture,
or kill any marine mammal. It provides a variety of existing regulatory
measures designed to protect marine mammals from unauthorized
harassment and other forms of take, ensure that the population stocks
do not diminish beyond the point at which they cease to be a
significant functioning element in their respective ecosystems, and
ensure stocks do not fall below their optimum sustainable population
levels. The MMPA also provides mechanisms to permit some types of take
through a regulated process, including a process for incidental taking
that is aimed at ensuring that the taking is small in number, has a
negligible effect on the affected marine mammal population, and
minimizes adverse effects on the population and its habitat to the
least practicable level. The MMPA will continue to provide protection
to the eastern DPS Steller sea lion to help ensure that it can remain a
fully functioning part of the marine ecosystem. In addition, provisions
of the MMPA provide mechanisms to protect the habitat of the eastern
DPS against certain kinds of threats, should they emerge.
The location of key terrestrial and aquatic habitats of the eastern
DPS of Steller sea lions within state and federal parks and marine
protected areas (e.g., Oregon Islands National Wildlife Refuge, Olympic
National Park, Farallon Islands National Marine Sanctuary, Three Arch
Rocks National Wildlife Refuge) offers additional protections for the
eastern DPS of Steller sea lions. These additional protections vary but
some are primarily focused on reducing or avoiding disturbance of the
animals when they are hauled out. More details are provided in the
Status Review (NMFS 2013a).
Federal regulations and management plans established by the
government of Canada provide protection for eastern DPS Steller sea
lions and their habitat in that country (e.g., Marine Mammal
Regulations of the Fisheries Act). The United States and Canada
cooperate on research and monitoring (such as in the planning and
sometimes the execution of aerial surveys) necessary for detecting
declines in status such that steps could be taken, if needed, to ensure
the long term health and well-being of this population within Canadian
waters.
A number of other federal and state statutes, including the Clean
Water Act, National Marine Sanctuaries Act, and Magnuson-Stevens
Fishery Conservation and Management Act will continue to provide
protection to wildlife and habitat and will likely help facilitate the
continued growth and stability of this population. The relationship of
these other federal statutes to Steller sea lions is discussed in more
detail in the Status Review (NMFS 2013a).
To address and fulfill aspects of Factor D, the Recovery Plan (NMFS
2008) enumerated two recovery criteria:
(1) Agreement is reached with the State of Alaska which describes
their fishery management plan, minimizes the take of Steller sea lions,
and describes how future actions taken by the State will comport with
the ESA and MMPA.
(2) A Steller sea lion recovery coordinator is on staff at NMFS.
During the process of conducting this Status Review, NMFS and the
Alaska Department of Fish and Game met to discuss how, in the event the
eastern DPS of Steller sea lion is delisted, future State actions will
minimize the take of Steller sea lions in accordance with the MMPA. The
State of Alaska provided correspondence that describes state fishery
management plans, maintains that existing practices followed by the
State with respect to fisheries management have minimized the take of
eastern DPS Steller sea lions and will continue to do so, and explains
the State's perspective on how such fishery management practices will
contribute to continued recovery of the eastern DPS and will continue
to comport with all aspects of the MMPA for the foreseeable future.
NMFS agreed (Balsiger 2012) that the described plans and management
actions satisfy the recommended delisting action.
NMFS has a Steller sea lion recovery coordinator on staff. This
satisfies the second recommended recovery criterion under this listing/
delisting factor.
Therefore, NMFS concludes that the actions identified under Factor
D in the Recovery Plan have been met. Based on the considerations for
Factor D, we conclude that the protections afforded by existing
regulatory mechanisms make it unlikely that the eastern DPS will become
in danger of extinction within the foreseeable future throughout all or
a significant portion of its range.
Factor E: Other Natural or Manmade Factors Affecting Its Continued
Existence
Beyond those threats discussed above, the Recovery Plan (NMFS 2008)
did not identify other threats that need to be considered under Factor
E. Based on information and analysis in the 2008 Recovery Plan and the
Status Review (NMFS 2013a), we find that there are no other factors
likely to cause the eastern DPS of Steller sea lions to become in
danger of extinction within the
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foreseeable future throughout all or a significant portion of its
range.
With respect to Listing Factor E, the 2008 Recovery Plan specified
that the following criteria should be achieved and accomplished in such
a way that delisting is not likely to result in re-emergence of the
threat:
1. An outreach program is established to educate the public,
commercial fishermen and others to the continued need to conserve and
protect Steller sea lions.
2. An Alaska stranding network is in place and functional.
Both NMFS and the Alaska Department of Fish and Game have outreach
programs devoted to Steller sea lion conservation and management in an
effort to educate commercial fishermen and the general public about the
ongoing need to protect and conserve Steller sea lions. Various forms
of outreach activities are conducted for the public, commercial
fishermen, Alaska Native organizations, and others (Web pages,
trainings, classroom presentations, videos, bumper sticker campaigns,
interpretive displays, etc.). The NMFS Alaska Region and West Coast
Region have Marine Mammal Stranding Programs, and the stranding network
is operational. More detail on both outreach and stranding efforts are
provided in the Status Review (NMFS 2013a). Based on this information,
we conclude that the recovery criteria specified under this listing/
delisting factor have been met.
Conservation Efforts
Prior to making a decision regarding the appropriate listing status
of a species, NMFS is required under section 4(b)(1)(A) of the ESA to
consider the efforts of any State, foreign nation, or political
subdivision of a State or foreign nation to protect the species. Such
efforts also include measures by Native American tribes and
organizations, private organizations and local governments. Under
provisions of the ESA and our Policy on the Evaluation of Conservation
Efforts (68 FR 15100; March 28, 2003), we are required to identify the
conservation efforts, evaluate the certainty of implementing them, and
evaluate the certainty that the conservation efforts will be effective.
Our basis for evaluating effectiveness should include consideration of
whether the effort or plan establishes specific conservation
objectives, identifies the necessary steps to reduce threats or factors
for decline, includes quantifiable performance measures for monitoring
compliance and effectiveness, incorporates the principles of adaptive
management, and is likely to improve the species' viability at the time
of the listing determination.
Canadian Efforts To Conserve the Eastern DPS of Steller Sea Lion
We have considered efforts by Canada to conserve the eastern DPS of
Steller sea lion. These are discussed elsewhere (e.g., Alaska Fisheries
Science Center (AFSC) 2011; NMFS 2013a), and we summarize them here. In
January 2011, Canada finalized a Management Plan for the Steller sea
lion. The DFO (2011:32) specified two management goals for the plan:
To ensure that anthropogenic threats from Canadian sources
do not cause unsustainable population declines or a contraction of the
current range or number of breeding sites in Canada.
Support for, and contribution to, an environment where
research and monitoring of Steller Sea Lions in British Columbia
contributes to achieving an improved global knowledge of the Eastern
Pacific Population.
The Management Plan articulates historical and current status;
ecological needs; the history of management in Canada; knowledge gaps;
management goals and assessment of threats; population and distribution
objectives for management; research and monitoring objectives; and
needed management, research, monitoring, and outreach and
communication. Hence, Canadian managers have developed a detailed
framework to guide their management of this species. Both the process
of developing such a framework and the existence of the framework
itself helps focus attention on Steller sea lion status and increases
the probability that high priority tasks needed to conserve this
species are accomplished. The AFSC (2011) concluded that the current
conservation and management plan for Steller sea lions in Canada
provides protections similar to the protection measures provided by the
MMPA.
Tribal Efforts To Conserve the Eastern DPS of Steller Sea Lion
NMFS collaborates with tribal entities on eastern DPS Steller sea
lion conservation. These include outreach activities undertaken by The
Alaska Sea Otter and Sea Lion Commission (TASSC, an Alaska Native
Organization) and research and monitoring efforts undertaken by the
Makah Tribe (Makah 2012). The Makah Tribe provided data and other input
at multiple stages of the development of the Status Review and the
PDMP. The Makah Tribe has operated a Marine Mammal Program to research
marine mammals since 2003 and had previously assisted marine mammal
studies conducted by NOAA since 1996. The tribe has gathered data on
the seasonal patterns of haulout use of Steller sea lions in
Northwestern Washington and collected data on the resightings of
branded Steller sea lions to contribute to NOAA and Oregon Department
of Fish and Wildlife life history studies. Both TASSC and the Makah are
listed as Regional Collaborators in the PDMP (NMFS 2013b).
State Efforts To Conserve the Eastern DPS of Steller Sea Lion
Conservation efforts by the States have facilitated the recovery of
the eastern DPS and will continue to provide protection and monitoring
following delisting. Alaska, Oregon, and Washington have active
research programs that provide vital information about status,
movements, threats, and ecology. In some cases, States have taken
action specifically to address identified threats. For example, in
their petition to delist this species the Oregon Department of Fish and
Wildlife (ODFW) and Washington Department of Fish and Wildlife (WDFW)
(2010:4, August 30, 2010) stated: ``In the late 1990s the Oregon State
Marine Board implemented a boat closure area around one of the more
important haul-out and rookery areas on the north coast of Oregon to
minimize disturbance.'' They also stated that ODFW ``has established
closures to sport fishing and commercial urchin harvest near the most
important rookery rocks on the south coast also to minimize
disturbance, particularly during the breeding season.'' In the Status
Review (NMFS 2013a), we detail many of the Steller sea lion related
outreach activities undertaken by the State of Alaska. Much of the
outreach to date has focused on Steller sea lion ingestion of gear and
entanglement in marine debris. State institutions, such as Oregon State
University, Washington Department of Fish and Wildlife, Humboldt State
University, and Alaska Department of Fish and Game participate as part
of the stranding networks in their region. The Alaska Department of
Fish and Game is an active participant in the Alaska Pinniped
Entanglement Group, a collaborative effort between the Alaska
Department of Fish and Game, NMFS, the Aleut Community of St. Paul, and
others concerned about entanglement in marine debris.
Federal Efforts To Conserve the Eastern DPS of Steller Sea Lion
Current Federal conservation efforts for the eastern DPS of Steller
sea lion (other than those conducted under the
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ESA) include monitoring, management, assessment, and enforcement under
the MMPA; federally sponsored and conducted research on Steller sea
lions, their habitat, and their prey; cooperative efforts with Alaska
Native subsistence hunters; outreach; stranding response and reporting;
and oil spill coordination. Multiple federal agencies in addition to
NMFS play roles in this species' conservation, including the National
Park Service (NPS), the USFWS, and NOAA National Marine Sanctuaries.
Existing federal regulatory actions are discussed under Factor D and in
the Status Review and are not repeated here.
Evaluation of Potential Significant Portions of the Range
As part of our Status Review, after considering the status of the
eastern DPS of Steller sea lions throughout its range, we also
considered whether portions of the range of the eastern DPS qualified
as significant portions. Our first step in this evaluation was to
identify any portions of the range of the DPS that warrant further
consideration. We focused on those portions of the range where there is
substantial information indicating that (i) the portions may be
significant (i.e., if a portion's contribution to the viability of the
species is so important that, without that portion, the species would
be in danger of extinction either currently or within the foreseeable
future) and (ii) the species may be in danger of extinction there or
likely to become so within the foreseeable future (76 FR 77002;
December 9, 2011).
As noted in the proposed rule to delist the eastern DPS of Steller
sea lions (77 FR 23209; April 18, 2012), we initially identified only
one portion of the eastern DPS's range that warranted further
consideration: The southern portion of the range in California. We
specifically considered whether the southern portion of the range in
California constituted an SPR because the Recovery Plan indicated that
there was concern over the performance of rookeries and haulouts in
this portion of the range, especially in contrast to the growth
observed in southeast Alaska. Following the receipt of public comments
on the proposed rule, we also evaluated population, genetic,
ecological, and other relevant information to determine whether either
the portion of the range within California or the portion of the range
within the California Current Ecoregion constitutes an SPR of the
eastern DPS.
We evaluated the abundance of Steller sea lions within California,
their productivity, movements, habitat use, and new information on
their genetic characteristics to determine whether the California
portion of the eastern DPS range is so significant that without that
portion, the long-term viability of the entire DPS would be so impaired
that the species would be in danger of extinction, either currently or
within the foreseeable future. The history of the species following its
protection indicates that this is not the case. Despite losing
rookeries in California, poor pup production at the Farallon Islands,
and the fact that the overall statewide population is about one-third
of the numbers present in the first half of the century, the overall
non-pup trend, as assessed by non-pup counts, for the trend sites
within the State of California from 1990-2011 has been stable. Further,
pup production in California has increased at about 2.9% per year from
1996-2011. While we do not fully understand the causes of poorer
performance of Steller sea lions in California compared to the rest of
the DPS, these data indicate that they are not in decline. More
importantly, the overall population recovery has met or exceeded the
demographic recovery criterion. Increases in numbers throughout much of
the rest of the DPS began ten to fifteen years before abundance began
to increase in California. Thus, available information does not support
a conclusion that the California population's contribution to the
viability of the eastern DPS is so important that, without that
portion, the eastern DPS would be in danger of extinction now or in the
foreseeable future. Therefore, we have concluded that California does
not constitute an SPR.
With regard to whether the California Current ecosystem constitutes
an SPR, NMFS finds that the evidence is equivocal, as discussed further
in the Status Review (NMFS 2013a). However, regardless of whether the
California Current portion of the range is an SPR, Steller sea lions
within the California Current portion of the range do not meet the
definition of a threatened or endangered species under the ESA. This
conclusion is based on trend information presented in the Status Review
and on the fact that no threats sufficient to impede the recovery of
the population now or within the foreseeable future were identified. In
other words, if NMFS assumes that the California Current portion is an
SPR, NMFS does not find that Steller sea lions are in danger of
extinction there or likely to become so within the foreseeable future.
The underlying trend information on pups (for California and Oregon)
and non-pups (for California, Oregon and Washington) is provided in the
Status Review (NMFS 2013a). The threat information is provided in the
Status Review (NMFS 2013a) and summarized above under our consideration
of the five factors that must be considered in listing decisions (see
``Evaluation of the ESA Section 4(a)(1) Factors and Associated Recovery
Criteria'').
Summary of Public Comments and Responses
We solicited information and public comment during formulation of
the Status Review, following publication of our findings regarding the
petitions to delist, and following publication of the proposed rule.
The first comment period of 60 days followed our initiation of the 5-
year status review of the eastern DPS of Steller sea lion under the ESA
(75 FR 37385, June 29, 2010; 75 FR 38979, July 7, 2010). On August 31,
2010 (75 FR 53272), we reopened the public comment period for an
additional 45 days. To ensure that the Status Review was comprehensive,
we again solicited scientific and commercial information regarding this
species for 60 days following the release of our 90-day finding on the
two petitions to delist the eastern DPS (75 FR 77602, December 13,
2010). Lastly, we solicited public comment for 60 days following the
release of the proposed rule, draft Status Review, and draft PDMP. As
described more fully below, we also solicited peer review of these
documents during the public comment period from seven scientists, four
of whom provided a review. All four scientists were outside of the U.S.
Federal government. Three had expertise on pinniped ecology, and one
had expertise on climate change impacts on marine ecosystems.
During the most recent public comment period NMFS received 1,144
comments relevant to the proposed action. Comments were submitted by
individuals; government agencies; fishing groups; environmental and
animal rights organizations; tribal entities; and professional
scientific societies. The comments raised numerous substantive
scientific, policy, and legal issues. Some submissions provided
relevant new information for NMFS's consideration. Many comments were
complex and had multiple facets, and thus some individual statements
are addressed in multiple comments and responses below. Most of the
individual commenters were opposed to the delisting. NMFS also received
a petition opposing the delisting with hundreds of signatures.
[[Page 66150]]
We fully considered all comments received from the public and peer
reviewers in developing this final determination to delist the eastern
DPS of Steller sea lion. Summaries of the substantive public and peer
review comments that we received on the proposed rule and our responses
to all of the significant issues they raise are provided below. We made
a number of changes to our analysis, the Status Review, and the PDMP in
response to comments received and we note those changes in our
responses.
Comments on Regulatory Process and Legal Issues
Comment 1: A commenter stated that when a species reaches the level
to warrant being delisted, delisting should occur as the law intended.
The commenter stated that delisting the eastern DPS of Steller sea
lions would be an important step in demonstrating that the ESA process
of listing and delisting species is functioning as Congress intended.
Response: We agree that species that do not meet the definition of
threatened or endangered should not be listed. We are delisting the
eastern DPS of Steller sea lion because we have concluded that the best
scientific and commercial information available indicates that it is no
longer endangered or threatened.
Comment 2: The State of Alaska stated that recovery does not mean
that all threats to a species have been eliminated but rather that
threats have been ``controlled.'' Citing a 2001 court case, they
further commented that recovery is ``the process that stops or reverses
the decline of a species and neutralizes threats to its existence.''
They concluded that recovery represents the point at which a species is
no longer declining and threats to its survival have been controlled or
neutralized, but not necessarily eliminated. They concluded that all
the relevant requirements for delisting the eastern DPS of the Steller
sea lion have been satisfied.
Response: The ESA implementing regulations (50 CFR 424.12) state
the following about recovery: ``The principal goal of the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service is to return
listed species to a point at which protection under the Act is no
longer required. A species may be delisted on the basis of recovery
only if the best scientific and commercial data available indicate that
it is no longer endangered or threatened.'' Based on our analysis of
such information, we have concluded that this is the case for the
eastern DPS of Steller sea lion, and that is why we are delisting it.
Comment 3: A few commenters expressed concern about NMFS's reliance
upon, and the quality of, data cited by the States of Washington and
Oregon in their petition regarding the trends in Steller sea lion
abundance in those two states, which commenters stated was not
submitted to NMFS and/or peer reviewed; the fact that NMFS cited and/or
relied on these assertions or data in the status review; and the fact
that the public was not permitted to review the data or information. A
commenter cited a court case indicating that in order to enable
meaningful public comment, an agency must make relevant information
known to the public in a concrete and focused form so as to make
criticism or formulation of alternatives possible.
Response: The petition to delist this DPS submitted by the States
of Washington and Oregon referred to unpublished count data that add an
additional 6 years to the data presented in Pitcher et al. (2007), who
presented data to 2002. Washington and Oregon did not, however, provide
those survey data with the petition. Rather, they included the data in
summary forms. For example, the petition included a figure showing non-
pup counts in Oregon from 1976-2008 and indicated that the counts for
2006 and 2008 had not been finalized. Subsequently, in June 2011,
Washington provided NMFS with count data from 1988-2008. The
information provided included the raw counts for each site, log
transformed data for each date, and two figures, one of which was
reproduced in the draft status review as Figure 3.5.4. After NMFS
published the proposed rule, Washington provided further data,
including counts through 2011. Similarly, in 2011 and 2012, Oregon
provided count data for 2003, 2005 (incomplete), 2006, and 2008.
Johnson and Gelatt (2012) included these newer data sets from
Washington and Oregon in their analysis of total DPS abundance trends
and of trends in non-pups. We have revised sections of the Status
Review (NMFS 2013a) related to the trends in abundance in Washington
and in Oregon to incorporate the additional data and to clarify the
timing and receipt of the additional data. The proposed rule relied on
all the data available to NMFS at the time we published the propose
rule, some of which was in summary form. We incorporated the
subsequently available data into the final rule and Status Review but
did not republish the proposed rule, because that data merely
corroborated the trends set forth in the proposed rule and draft Status
Review.
Comment 4: A commenter stated that Washington and Oregon are
primarily focused on what they perceive to be problems posed by the
recovery of the eastern DPS. The commenter noted that these so-called
``negative interactions'' are not grounds for delisting the DPS, and
that any decision to delist a species must be based solely on the
biological needs of the species and not the interests of fishermen or
other industry interest.
Response: We agree that factors that the commenter refers to as
``negative interactions'' are not a basis for delisting a species. A
species may be delisted on the basis of recovery only if the best
scientific and commercial information available indicates that it is no
longer endangered or threatened after consideration of factors
specified in section 4 of the ESA.
Comments Relevant to DPS and SPR Issues
Comment 5: A commenter stated that NMFS has made the correct
determination to delist the whole eastern DPS because the population
unit being protected is the genetically distinct eastern DPS rather
than individual rookeries within the eastern DPS. Citing Bickham
(2010), they stated that genetic studies have found no evidence of
stock structure within the eastern DPS that might warrant separate
management of the southern portion of the range from the rest of the
eastern DPS.
Response: We agree that it was appropriate to consider the status
of the eastern DPS as it is currently recognized. NMFS evaluated
available information about genetic variability, movements, habitat
use, ecosystem and ecoregion variability throughout the range,
subspecies designation, and other factors related to determining
whether there are smaller DPSs within the eastern DPS of Steller sea
lion. We concluded that the best available information indicates that
there are not such discrete subunits, and thus, we focused our
evaluation of status on the DPS as it was described in 1997.
Comment 6: Multiple commenters asserted that the proposed rule to
delist failed to conduct a proper DPS analysis. The Marine Mammal
Commission (MMC) commented that NMFS should base its delisting decision
on the status of the eastern stock as a whole and also on the status of
potential units of conservation significance within the eastern stock.
They stated that the status review should consider whether any grouping
of sea lions within the eastern
[[Page 66151]]
stock might warrant recognition as a DPS for listing purposes. Multiple
commenters stated that NMFS should consider whether the portions of the
eastern stock of Steller sea lions that occupy the Alaska Current and
California Current ecosystems are sufficiently discrete and significant
for Steller sea lions in those areas to warrant separate consideration
under the ESA, i.e., whether Steller sea lions within the California
Current System (which they defined as California, Oregon, and
Washington) comprise a California Current System DPS based on the best
available science. The MMC recommended that NMFS delist the eastern DPS
and retain threatened status for a newly designated California Current
DPS. Other commenters argued that NMFS should list a California Current
DPS. A commenter stated that NMFS should consider protecting the
California portion of the range as a separate DPS or retain the listing
for the entire DPS. Commenters provided evidence to support the
recognition and continued protection of a California DPS or California
Current DPS based on differences in population status, ecology, and
threats. Commenters provided information regarding different ecoregions
and/or ecosystems within the range of the eastern DPS. A commenter
noted that NMFS appears to have considered establishing a DPS for the
California population, but rejected doing so because ``there is no
genetic basis to further subdivide the California portion from the
eastern DPS in its entirety.'' A commenter stated that the proposed
rule only considered genetic measures of discreteness for the
California portion rather than the full suite of physical,
physiological, ecological, or behavioral factors as required by the DPS
policy. Citing the proposed rule, the commenter stated that the
analysis is limited to one brief statement in the draft Status Review:
``Recently completed genetic studies have resolved the lingering
question of relatedness, establishing that the southern California
portion of the population is not a separate `valid DPS' (Bickham
2010a).'' A commenter pointed out that genetic distinctiveness is but
one possible rationale for establishing a DPS; it is not a legal
requirement for every DPS unit. The commenter stated that the failure
to consider other factors for establishing a California Current DPS is
not consistent with the NMFS's own policy regarding DPS units.
Response: As described more fully in the Status Review (NMFS
2013a), we explicitly considered whether the best available information
still supported the recognition of the eastern DPS of Steller sea lion,
as currently recognized as a single DPS--i.e., we determined whether it
met the criteria for discreteness and significance as outlined in the
DPS Policy (61 FR 4722; February 7, 1996). We concluded that it does.
As explained in AFSC (2011), this conclusion is based on an extensive
body of research that includes sea lion population genetics, ecology,
behavior, and details regarding the physical and physiological
characteristics of the species.
In response to comments received at various stages of our
evaluation process, we also explicitly considered whether either the
population segments of Steller sea lions that breed within the
California Current System or in California met the DPS criteria. While
there is extensive ecological variability within the breeding range of
the eastern DPS, we did not find compelling evidence of consistent or
marked separation among different segments within the eastern DPS of
Steller sea lion. The best available evidence indicates that Steller
sea lions that breed in northern California, southern Oregon, and
Washington are not markedly separated from Steller sea lions in British
Columbia and southeast Alaska as a consequence of physical,
physiological, ecological, or behavioral factors. We did not find
persuasive evidence that indicated that some segments of the eastern
DPS are discrete from the other portions of the DPS. The best available
evidence about genetic patterns, morphology, ecological characteristics
of habitat, movement patterns, etc. also does not indicate that Steller
sea lions in California are discrete from those in the rest of the
eastern DPS. After consideration of the information available to us at
the time of the release of the draft Status Review and that provided to
NMFS during public comment on the proposed rule, we did not find it
appropriate to further subdivide this DPS.
Comment 7: Two scientific organizations commented that there are
not sufficient genetic differences between populations of Steller sea
lion in California compared to the remainder of the eastern DPS to
warrant designation of a DPS unit based solely on that criterion.
However, they stated that because adaptive potential is a hedge against
unknown future changes in environment, and most genetic variation
contributes incrementally to adaptive potential, it is difficult to
identify a strict threshold as to how much diversity is enough for any
species. They cited Carroll et al. (2010) as concluding that, given
this inherent uncertainty, geographic distribution across ecosystems
may be a more practical surrogate for direct analysis of genetic
viability. They stated that an additional benefit of properly
considering the representation of Steller sea lions within an ecoregion
unit is that ``a species [that] is well distributed throughout its
historic range (i.e., securely occupies all but an insignificant
portion of its range) will generally correspond with the conditions
necessary for genetic viability.''
Response: We considered the information in Carroll et al. (2010) as
part of our DPS analysis. We note that in the case of the Steller sea
lion, there are multiple studies of patterns of genetic variation from
multiple locations throughout the range of the eastern DPS and the
western DPS on which to evaluate underlying genetic structure within
and between the DPSs. These data are directly relevant to evaluating
the discreteness of population segments within the DPS. Thus, NMFS did
not require the use of a surrogate for direct analysis of genetic data
but rather relied on multiple studies in which such direct analysis was
undertaken.
Comment 8: Two scientific organizations commented that the approach
of using a species' presence in an ecoregion is a valid rationale for
protecting that portion of a species as a DPS unit, and that this
rationale appears to have been used by NMFS in some situations such as
in its protection of the Atlantic sturgeon (Acipenser oxyrinchus) under
the ESA. They stated that a similar analytical approach should be used
for delineating a California Current DPS of the Steller sea lion. The
commenter stated that analyzing the threats to a species at the
ecoregion or ecosystem unit level is consistent with multiple listing
actions by NMFS and USFWS.
Response: In order to be recognized as a DPS, a population segment
must be both ``discrete'' and ``significant'' as discussed in the joint
USFWS and NMFS DPS Policy (26 FR 4722; February 7, 1996). The DPS
Policy states that a ``population of a vertebrate species may be
considered discrete if it satisfies either one of the following
conditions: (1) It is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors (quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation) or (2) it is
delimited by international governmental boundaries within which
[[Page 66152]]
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of Section 4(a)(1)(D) of the ESA.'' Once the
discreteness criterion is met for a potential DPS, we then evaluate
whether the significance criterion is met.
With respect to the recognition of Atlantic sturgeon DPSs, we
relied on tagging data and genetic analyses, which demonstrated
ecological separation of populations during spawning, as evidence of
marked separation or ``discreteness'' of certain populations (77 FR
5880, 77 FR 5914; February 6, 2012). We subsequently considered several
lines of evidence, including persistence in unique ecological settings,
as support for the ``significance'' of each of the potential DPSs to
the taxon as a whole.
There is variation in the ecological characteristics of marine
habitats within the range of the eastern DPS of Steller sea lions and
several different schemes have been designed to describe and classify
this variability. Thus, commenters are correct that ecological
variability exists in this range, and we agree that ecoregion and/or
ecosystem differences in various parts of the range may be useful when
evaluating the discreteness of portions of a species. However, as noted
by some commenters, including those supporting recognition of a
California Current DPS, the best available genetic data within the
range of the eastern DPS of Steller sea lion do not support the
delineation of a California or California Current DPS. While we
considered ecoregion and ecosystem variation throughout the range of
the eastern DPS, we did not find consistent compelling evidence of
marked discontinuity or separation between segments of the population
that breed at rookeries within these different ecoregions. Further, we
note that, based on Spalding et al.'s (2007:574-575) biogeographic
classification scheme, the entire historic and breeding range of the
eastern DPS falls within the Temperate North Pacific Realm and the
entire current breeding range falls within the Cold Temperate North
Pacific Province. Spalding et al. (2007) stated that provinces are
``Large areas defined by the presence of distinct biotas that have at
least some cohesion over evolutionary time frames . . . Although
historical isolation will play a role, many of these distinct biotas
have arisen as a result of distinctive abiotic features that
circumscribe their boundaries . . . In ecological terms, provinces are
cohesive units likely, for example, to encompass the broader life
history of many constituent taxa, including mobile and dispersive
species . . .''. Based on the genetic and movement data of eastern DPS
Steller sea lions, it would appear that the ecological province does
encompass the broader life history of this DPS. This supports the
continued recognition of the eastern DPS as a single, discrete entity.
As stated in the DPS Policy, persistence of a species in a unique
ecological setting is a factor that can be considered in determining
the significance of discrete subunits of a species. Because we did not
find sufficient evidence indicating that there were discrete subunits
within the eastern DPS of Steller sea lion, we did not address the
issue of significance of any potential non-discrete subunits.
Comment 9: A commenter noted that with respect to DPS units, USFWS
has repeatedly determined that a gap at the end of a species' range is
a valid reason for finding significance under the DPS policy. The
commenter stated that court rulings have pointed out that in other
listing rules, USFWS has interpreted the term `gap' to include the loss
of peripheral populations. The commenter stated that NMFS has used
similar reasoning in protecting several species under the ESA (e.g.,
the Cook Inlet beluga whale and the southern DPS of spotted seals). The
commenter stated that the loss of the southern population of Steller
sea lion would represent a similar gap in the range of the species as a
whole, and therefore it warrants protection under the ESA.
Response: As noted in the previous response, based on the DPS
Policy (26 FR 4722; February 7, 1996), in a DPS analysis, if a
population segment is determined to be discrete in relation to the
remainder of the species to which it belongs, then its significance to
the species is determined. NMFS did not find compelling evidence
indicating that a California or California Current subunit of the
eastern DPS meets the discreteness criterion of the DPS Policy. Thus,
evaluation of the significance of these subunits is moot in the context
of a DPS analysis. By contrast, for Cook Inlet beluga whales and
spotted seals we had information indicating that there were discrete
populations, and thus evaluation of the significance of those
populations was relevant (see 65 FR 34590; May 31, 2000 and 75 FR
65239; October 22, 2010).
Comment 10: A commenter stated that NMFS should use its authorities
under section 4(d) of the ESA to craft a flexible management regime for
Steller sea lions to provide continuing protections of the ESA where
needed, while providing regulatory flexibility. Two commenters stated
that NMFS should issue a special rule for the eastern DPS to allow
certain limited kinds of take, under permit by the agency, and
supported by science, such as take authorized under the MMPA, without
violating the ESA. The commenters stated that this management tool is a
more prudent course of action than delisting the entire eastern DPS.
Response: Based on the evaluation presented in the Status Review
and summarized in this final rule, NMFS has concluded that the eastern
DPS no longer meets the definition of a threatened or endangered
species and warrants delisting. Since we cannot adopt management
measures under section 4(d) of the ESA for a species that is no longer
listed as threatened, we cannot pursue the regulatory measures
described by the commenter. We note, however, that the species will
still be protected under the MMPA.
Comment 11: A commenter noted that Steller sea lion biologists have
provided evidence supporting the potential subdivision of the DPS and
the maintenance of protections for what they termed ``southern Steller
populations.'' The commenter cited findings from Hastings and Sydeman
(2002) that differences in trends between rookeries in southeast Alaska
and those in Canada, Oregon, and California may indicate that these
areas deserve separate management considerations and that because
significant declines in Steller sea lions have occurred at San Miguel
Island, A[ntilde]o Nuevo Island, and the South Farallon Islands,
greater monitoring and protection are warranted.
Response: Section 3 of the ESA defines a ``species'' to include
``any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.'' Something must qualify as a ``species'' to
be listed and protected under the ESA. As noted above, we did not find
compelling evidence indicating there are population segments within the
eastern DPS that meet the definition of a DPS.
With regard to the contention of differences in trends among
rookeries in different parts of the range, we note that the only
portion of the range in which the best available data indicate that
there has not been a sustained increase in non-pup numbers is in
California, where the overall trend in non-pup counts has been stable
for the past two decades. Pup and non-pup trend data do not indicate
that a subset of the population within Canada, Washington, Oregon, and
California should warrant
[[Page 66153]]
different management than southeast Alaska. NMFS has included elements
in the PDMP to monitor threats throughout the range and to determine if
the poor performance of the species in parts (but not all) of its
historic and current range in California spreads northward.
Comment 12: A commenter stated that scientific evidence and
Congressional guidance supports a decision not to delist the eastern
DPS of Steller sea lions and instead to reintegrate the two DPSs into a
single species. This commenter contended that this reintegration of the
Steller sea lion taxon is supported by trends strongly suggesting that
the two DPSs are merging geographically and genetically, as well as
Congressional guidance that the authority to list DPSs be used
sparingly.
Response: We disagree that the weight of scientific evidence
supports reintegrating the eastern and western DPSs. Genetic data,
subspecies assignment based on genetics and morphology, population
trends, and ecological differences in vast parts of the range continue
to support the recognition of the eastern and western DPSs. Although
recent data in the far northern part of the eastern DPS indicate
movement of some western DPS females into the area east of 144 [deg]W
longitude (Jemison et al. 2013), this mixed part of the breeding range
remains small. The findings represent what may be an evolving
relationship between the DPSs (Jemison et al. 2013). However, at
present, we conclude that the weight of evidence supports the continued
recognition of the eastern and western DPSs.
Comment 13: Multiple commenters stated that NMFS did not properly
interpret the phrase ``significant portion of its range'' (SPR) in the
ESA definitions of ``endangered'' and ``threatened.'' Commenters stated
that NMFS applied the flawed criteria of the draft SPR Policy by
determining that a portion of a species' range would be significant
only if delisting that portion would place the entire species at risk
of extinction in the future. Multiple commenters recommended that NMFS
analyze whether the Steller sea lions in the California Current System
(which they defined as California, Oregon, and Washington) constitutes
an SPR of the eastern DPS, particularly because none of the
``populations'' meets the demographic or threats-based delisting
criteria. They stated that NMFS should retain the listing for the
entire eastern DPS based on threats to a California Current System SPR.
A commenter stated that California represents a significant portion of
the species' range, the species remains threatened there, and delisting
is premature and does not meet the best available information mandate
within the ESA. Commenters indicated that for these reasons, the
eastern DPS warrants continued protection under the ESA. Multiple
commenters also stated that the eastern stock occupies two major
ecosystems formed as the North Pacific Current approaches western North
America and splits into the Alaskan Current flowing northward and the
California Current flowing southward. Relatedly, multiple commenters
summarized that the offshore waters of California, including the
California Current (and one commenter indicated also the Southern
California Bight), represent ecological regions that are distinct from
those farther north. Multiple commenters stated that the California
Current, including the Southern California Bight, represents a logical,
science-based ecoregion in which to assess the viability of the Steller
sea lion. Commenters maintained that the California Current region
clearly meets a threshold of geographic significance since it covers
roughly half of the range of the eastern DPS. They stated that this
productive upwelling ecoregion also meets a threshold of biological
significance.
Response: We will respond to comments on the SPR Policy in the
final decision regarding the draft policy. As indicated above, in this
rulemaking, we consider the draft SPR Policy to be non-binding
guidance. In making our determination to delist the eastern DPS, we
reconsidered information on patterns of genetic variability, movement
patterns, ecosystem and ecoregion classification, and other relevant
information to determine whether either the portion of the range within
California or the portion of the range within the California Current
ecoregion constitutes an SPR of the eastern DPS. We concluded that
California does not constitute an SPR. In reaching this conclusion, we
evaluated the abundance of Steller sea lions in California, their
productivity, and their diversity to determine whether the California
portion of the eastern DPS range is so significant that without that
portion, the long-term viability of the entire DPS would be in danger
of extinction, either currently or within the foreseeable future. We
also evaluated whether the California Current portion of the range is
an SPR. As we discuss in more detail in the Status Review, based on the
concepts of representation, redundancy, and resiliency, consideration
of the demographic consequences of the loss of the California Current
portion of the range to the overall population, and consideration of
what the loss of that entire segment of the range would indicate about
the presence of substantial and uncontrolled threats within the DPS, we
found that there were arguments for and against the contention that the
California Current portion of the range is an SPR of the eastern DPS.
With respect to the recommendation that NMFS retain listing for the
entire eastern DPS based on threats to a California Current SPR, we
concluded that regardless of whether the California Current portion of
the range is an SPR of the eastern DPS of Steller sea lion, that
determination would not change the conclusion of the Status Review
because Steller sea lions within the California Current portion of the
range do not meet the definition of either a threatened or endangered
species under the ESA. If the final SPR Policy differs materially from
the draft policy considered here as non-binding guidance, we will
consider whether any subsequent action with respect to the eastern DPS
is appropriate.
Comment 14: A commenter expressed concern with NMFS's assessment
that the Steller sea lion ``has recently shown a positive trend'' in
California. Commenters stated that while there may be a slight increase
in pup production in California, data from the draft Status Review show
no increase in non-pups. A commenter stated that while data from the
draft Status Review indicate that the eastern DPS has met the recovery
targets for delisting in Alaska, British Columbia, and possibly
Washington and Oregon, the data do not demonstrate that recovery
targets for the eastern DPS have been met in California. Steller sea
lions were extirpated from the Channel Islands in the 1980s and remain
well below their historic population levels. The commenter said that
Steller sea lion populations in California have at best remained stable
for the last 15 years, but remain at approximately one-third the level
that the population represented in the first half of the 20th century.
Another commenter stated that counts used in the proposed rule for the
California portion of the eastern DPS combine the counts for the entire
state into a single estimate rather than more appropriately considering
the southern portion separately.
Response: NMFS acknowledges there are parts of California where
Steller sea lions have not recolonized (e.g., San Miguel Island), and
others where performance has been poor (the Farallon Islands), even
with protection from
[[Page 66154]]
disturbance and direct take. Since the draft Status Review, additional
new data have become available regarding trends in non-pups in
California. Regression analyses of non-pup count data from 1990-2011
show an average rate of change over that period of 0.0% in California.
Thus, commenters are correct that non-pup data from California in the
past couple of decades have not shown an increase and the number of
Steller sea lions in California remains low compared with their
abundance in the first half of the 20th century. We have clarified this
in the Status Review and in this final rule and have considered this
fact in our findings about the status of the eastern DPS. Based on
regression analysis, there has been an average annual increase of 2.9%
from 1996-2011 in California pup counts. As discussed in the Status
Review (NMFS 2013a), our overall estimation of total population
abundance is based on expansion from pup count data. Pup counts have
shown a positive annual rate of change throughout all four breeding
subareas of the range: California, Oregon, British Columbia, and
southeast Alaska. Elsewhere in the range of this DPS, Steller sea lions
have established new breeding sites and recolonized some of the old
ones. Overall, the performance in California does not negatively affect
the viability of the entire population to the point where it places the
population in danger of extinction now or within the foreseeable future
and it has not impeded robust increases in many other parts of the
range of this DPS. Lastly, we reiterate that the Recovery Plan does not
specify biological recovery criteria for subareas. Evidence indicates
that the DPS, as a whole, has met the biological recovery criterion.
Comment 15: A commenter stated that the flat growth rate in the
southern part of the range may presage additional losses to come in
other rookeries used by the eastern DPS.
Response: Goodman's (2006) extinction risk analysis for the eastern
DPS noted the importance of monitoring to detect any northward
extension of the area in California in which the counts of pups and/or
non-pups did not increase and/or in which the pattern of increase has
been inconsistent or weak. Thus, NMFS included monitoring in the PDMP
specifically to determine if there is a northward spread of the kinds
of poor performance seen in parts (e.g., the Farallon Islands) of
California.
Comments on Listing Factors and Threats
Comment 16: A number of commenters stated that all five factors in
section 4(a) of the ESA must be met in order to ensure the species is
protected and its long-term conservation is ensured.
Response: We agree that the five listing factors must be considered
in a decision about the appropriate ESA listing status of a species and
we consider them, as discussed herein and in the Status Review (NMFS
2013a).
Comment 17: A few commenters who expressed support for the proposed
delisting noted that human-related serious injury and mortality is
likely well below the potential biological removal level, population
growth observed over the past three decades provides strong empirical
evidence that the eastern stock as a whole has met the biological
recovery goal set forth in the Recovery Plan (NMFS 2008), and delisting
appears to be consistent with the factors specified in section 4(a)(1)
of the ESA.
Response: We agree that delisting appears to be consistent with the
factors specified in the ESA.
Comment 18: A commenter criticized the measures by which NMFS
evaluated threats, stating that major threats were not properly
considered. The commenter asserted that five major areas of negative
impact likely to affect the eastern Steller sea lions were dismissed
from consideration because NMFS claims none would lead to the
extinction of the DPS in the foreseeable future. The commenter
identified these five threats as global climate warming and ocean
acidification, indirect fisheries interactions, coastal development and
disturbance, toxic substances, and oil and gas development. The
commenter stated that using this measure (of whether each area of
negative impact would lead to the extinction of the DPS) has the effect
of considering only the good news and none of the bad. Many commenters
expressed their concern that not all of the listing factors have been
given proper consideration, are adequately addressed, or have been
adequately met to ensure the species' conservation after the
protections of the ESA are removed. Multiple individuals and
organizations commented that delisting is not warranted because the
proposed rule does not adequately evaluate and/or consider threats to
the eastern DPS, such as global climate warming and ocean
acidification, indirect fisheries interactions, coastal development and
disturbance, toxic substances, oil and gas development, overfishing,
loss of food sources, encroachment into habitat, disease, and
predation.
Response: We reviewed and revised the Status Review in response to
these comments. We considered both positive information concerning
Steller sea lions as well as information about emerging and/or residual
threats, including the threats cited by the commenters. We supplemented
and/or revised some sections related to threats.
Comment 19: One commenter stated NMFS should wait at least two
years and then re-evaluate the status of this DPS. Another commenter
stated that Steller sea lion populations in California, Oregon, and
Washington face significant ongoing threats to their existence. A
commenter asserted that Steller sea lions in California, Oregon, and
Washington do not meet the delisting criteria and face ongoing threats.
Response: NMFS acknowledges that there are some residual threats
and potential emerging threats that may have adverse effects on eastern
DPS Steller sea lions. We discuss these in the Status Review and
elsewhere in this final rule. We have designed a PDMP to monitor such
residual threats and potential emerging threats over 10 years following
delisting. However, based on the strong performance of the population
over an extended period of time despite the presence of these residual
threats, NMFS concludes that there are not population-level threats
that render this species in danger of extinction throughout all or a
significant portion of its range or likely to become so within the
foreseeable future.
Comment 20: The USFWS at the Farallon National Wildlife Refuge
commented that the causes of the decline of the Farallon colony are
uncertain. Contaminant studies in the early 1990s revealed elevated
levels of organochlorines and trace metals such as mercury and copper
that may have impacted reproduction. Disease, declines in prey
availability and competition with increasing numbers of other pinnipeds
(e.g., California sea lions) also may have contributed to declines and
lack of recovery of this colony.
Response: We appreciate the substantial additional information
provided by the refuge and its collaborators. We incorporated a summary
of this information into the Status Review.
Comments on Factor A: Present or Threatened Destruction, Modification,
or Curtailment of Its Habitat or Range
Comment 21: Multiple commenters stated that there are future
threats to this population from climate change. The MMC commented that
climate-related habitat degradation is one of the leading hypotheses to
explain the loss of Steller
[[Page 66155]]
sea lion rookeries in California, and Steller sea lions may be shifting
their distribution northward as the climate warms and alters the marine
ecosystem off California. The NPS at Point Reyes stated that future
climate change impacts are likely to affect the population at the
southern end of species' ranges, and that they hope NMFS takes these
points into account. One commenter wrote that since the short and long-
term effects of climate change are at best unclear, it is not prudent
to delist any endangered or threatened species. A commenter noted that
numerous studies have documented climate-change-related shifts in the
California Current Ecosystem that threaten food availability for the
Steller sea lion. The commenter stated that the decline in the southern
end of the range is consistent with the northward range shifts observed
for many marine and terrestrial species in response to climate change.
A commenter stated that, although only south-central California
populations appear to be experiencing population declines at present,
Steller sea lions across the California Current system from California
to Washington are vulnerable to continuing changes and likely declines
in habitat suitability as oceanic conditions continue to affect the
California Current and breeding habitat may further contract. A
commenter stated that Steller sea lions in the southern portion of the
eastern DPS are under significant stress that is not necessarily
confined to areas where growth rates are flat and rookeries are already
lost. This commenter stated that the changing oceanic conditions in
California warrant greater concern for the southern portion of the
eastern DPS.
Response: We agree that effects of climate change, especially in
the southern part of the range, are a concern. We discussed the
emerging, climate-change related threats in the Status Review and
considered them in our delisting decision. Due to the specific ecology
of the Steller sea lion, including the facts that it is not ice-
dependent or associated and is a generalist forager, we conclude that
at present the magnitude and timing of effects from climate change on
Steller sea lions and the ecosystems of which they are a part are
highly uncertain over the foreseeable future. We have included
monitoring in the PDMP related to these potential threats so that we
can respond as appropriate.
Comment 22: A commenter stated that given the increased
recreational visitation to the California coast, human disturbance may
play a significant role in the decline of southern Steller sea lions.
An example of this is the increase in boaters at the Sea Lion Rocks. A
commenter wrote that eastern DPS rookeries are remote with little
direct human contact, in addition to enjoying multiple layers of
statutory protections. The areas are very much the same now as they
were pre-listing and are expected to remain the same for many years.
Food resources are abundant and no concerns have ever been identified
in this region with regard to a deficit in prey for Steller sea lions.
Response: We have repeatedly acknowledged and highlighted the high
vulnerability of Steller sea lions to disturbance. We recognize that
terrestrial habitats where Steller sea lions are undisturbed are
important to the conservation of Steller sea lions. We share concerns
that increased recreational use of the coast in some areas could become
a problem. However, it is also the case that most eastern DPS rookeries
continue to provide excellent habitat for Steller sea lions, and we
included measures in the PDMP to monitor population performance, human
activities, and the status of terrestrial habitats. These measures will
facilitate our efforts to determine if future disturbance is resulting
in population-level effects. We emphasize that the protections of the
MMPA will remain in place following delisting. As discussed elsewhere,
the MMPA established a moratorium on take of marine mammals with some
exceptions. As take includes harassment, unauthorized disturbance of
Steller sea lions for a purpose not covered by an exception to the
moratorium is illegal under the MMPA.
Comments on Factor B: Overutilization for Commercial, Recreational,
Scientific, or Education Purposes
Comment 23: A commenter noted that, in its petition to delist the
DPS, Alaska documents only 20 mortalities of eastern Steller sea lions
from subsistence hunting. The commenter pointed out that this is based
on data that is approximately 15 years old.
Response: While we considered the information in the two petitions
to delist this DPS, we did not rely exclusively on that information to
evaluate the listing status of this species. In the Status Review (NMFS
2013a), we provide data for estimated subsistence takes of Steller sea
lions by Alaska Natives between 1992-2008. This represents the best
available information on subsistence harvest in Alaska. Data from
southeast Alaska, within the breeding range of this DPS, indicate that
the take has increased since the Recovery Plan was written but remains
low relative to the size of the population. While we have some
uncertainty about actual numbers of animals killed by subsistence
hunters, there is no indication that subsistence hunting is having an
adverse population level effect on the eastern DPS of Steller sea
lions, or that it is likely to have such an effect within the
foreseeable future.
Comment 24: A commenter stated that some would have the public
believe that commercial fishermen are nearly single-handedly
responsible for the decline of sea lions, either incidentally or
intentionally. This commenter stated that southeast Alaska is home to
more permit holders and fisheries than any other area on the West
Coast, and the Steller sea lion population there has never been
depleted. A commenter expressed support for the proposed delisting and
stated that he hoped that the agencies will stop highlighting takings
by commercial fishermen as a top cause of decline in Steller sea lion
abundance. The commenter pointed out that many past practices with
negative effects on sea lions were not a result of fishermen's actions:
Shooting by public officials in California, bounties placed on sea
lions by some management agencies, commercial harvests, etc.
Response: Available evidence indicates that illegal and legal
shooting associated with fisheries was a source of mortality
historically, probably of varying degrees of magnitude and importance,
in many parts of the range. Available data (e.g., Raum-Suryan et al.
2009; Raum-Suryan unpublished report) indicate that fishery-related
entanglement in marine debris is also currently a problem in multiple
parts of the range of this species. Hence, it is important for NMFS to
consider and accurately portray the available evidence related to the
potential levels and importance of fishery-related take, and the levels
of uncertainty related to estimating that impact. However, as noted by
the commenter, Steller sea lions have demonstrated a sustained recovery
in southeast Alaska, an area with considerable commercial fishery
activity. We reviewed our discussion of historic factors and current
threats in the Status Review in response to this comment to ensure that
we accurately portray the magnitude of known take in fisheries versus
the likely effects of other factors.
Comment 25: The MMC commented that the eastern DPS of Steller sea
lions is not used to any significant degree for commercial,
recreational, scientific, or educational purposes and these types of
activities are not known to pose a significant risk to the population.
In Alaska, they are killed for subsistence purposes and the best
available
[[Page 66156]]
information indicates a total annual harvest (including those shot but
not recovered) from the eastern DPS (U.S. waters only) of about a dozen
sea lions.
Response: We agree. In the status review, we acknowledge some
uncertainty about the actual level of mortality associated with illegal
takes and subsistence hunting, due in part to the vast and remote range
within which these animals live, and also due to the fact that our
knowledge of the level of subsistence hunting depends on retrospective
voluntary surveys, which have not been conducted range-wide since 2008.
The Status Review summarizes available information on annual
subsistence harvests. There is no indication that these takes are
having an adverse population level effect on the eastern DPS of Steller
sea lions, or that they are likely to have such an effect within the
foreseeable future.
Comment 26: A commenter noted that the 2008 Recovery Plan
identified overutilization as the primary reason for the listing of the
eastern DPS of Steller sea lions under the ESA and this view is
reinforced by the discussion in the draft Status Review that concluded
``the main factor limiting Steller Sea Lions along the west coast of
North America was predator control . . .'' The commenter indicates that
NMFS provided an inadequate consideration of this factor, and of the
sufficiency of regulatory mechanisms to prevent a recurrence of
overutilization.
Response: We reviewed the portion of the Status Review (NMFS 2013a)
that discusses overutilization in response to this comment. The general
take moratorium in the MMPA, and the findings that NMFS is required to
make before authorizing take under the MMPA, should provide adequate
protections against the threat of predator control in the future in the
U.S. portion of the range of Steller sea lions. Protections against
overutilization also exist in British Columbia, as discussed in the
Status Review (NMFS 2013a).
Comment 27: A commenter stated that while the agreement in the
draft Status Review (Appendix 2) between NMFS and the State of Alaska
regarding monitoring of the eastern DPS of Steller sea lions asserts
that Alaska has no state-managed fisheries that are of concern, both
the draft Status Review and the 2011 NMFS marine mammal stock
assessment (Allen and Angliss 2011) document numerous fisheries
(including gillnet fisheries) that use gear types known to entangle and
kill pinnipeds.
Response: We acknowledge the apparent discrepancy in these
statements. The draft Status Review summarized that ``Four Alaska
state-managed fisheries have been observed to cause serious injury or
mortality to eastern DPS Steller sea lions (Alaska southeast salmon
drift gillnet, Alaska Gulf of Alaska sablefish longline, Alaska
commercial passenger fishing vessel, and Alaska salmon troll).'' We
also discuss the issue of fisheries-related entanglement in the Status
Review. We summarized that the best available information supports a
conclusion that while Steller sea lions are taken incidental to
commercial fishing, the known mortality level from this source is
relatively small compared to the PBR.
Comment 28: A commenter stated that NMFS's stock assessment for
this DPS states that no records of fishery related mortality are kept
in Canada, so the level of mortality from incidental take or shooting
at aquaculture facilities is unknown. A related comment indicated that
the absence of monitoring for lethal interactions is not the same thing
as having monitoring data confirming the absence of interactions.
Citing a study by Credle et al. (1994), the commenters stated that
self-reporting by fishermen is generally a grossly inaccurate
underestimate.
Response: We agree that it is important to clarify when we have
data sufficient to evaluate lethal interactions (or other threats) and
when we have no data, few data, or outdated data on which to base our
evaluation of the threat. Since this is not the only potential threat
to which this comment is relevant, we broadly re-evaluated our
discussion of threats in the Status Review with this same point in
mind. Lastly, we considered the information provided by the Credle et
al. (1994) reference in our evaluation of fishery interactions.
However, despite the lack of data regarding actual levels of incidental
take or shooting at aquaculture facilities in Canada, Steller sea lions
in Canada have demonstrated a robust and sustained recovery.
Comment 29: Hundreds of commenters urged NMFS not to delist this
population due to their concern that a delisting will be followed by
programs to kill Steller sea lions to reduce predation of fish at the
Bonneville Dam on the Columbia River. Citing a recent increase in
illegal killing in the Pacific Northwest, some commenters also
expressed concern that delisting will be followed by an increase in
illegal killing, especially if a Steller sea lion predator control
program is initiated at Bonneville Dam.
Response: Following delisting, the Steller sea lion will continue
to be protected against take under the MMPA. However, section 120 of
the MMPA (16 USC 1389(a)) provides that a State may apply to the
Secretary to authorize the intentional lethal taking of individually
identifiable pinnipeds which are having a significant negative impact
on the decline or recovery of salmonid fishery stocks which: (a) Have
been listed as threatened species or endangered species under the ESA;
(b) the Secretary finds are approaching threatened species or
endangered species status (as those terms are defined in that Act); or
(c) migrate through the Ballard Locks at Seattle, Washington. Hence,
following delisting, the States of Washington and/or Oregon may apply
to lethally and intentionally remove individually identifiable eastern
DPS Steller sea lions which are having a significant negative impact on
the decline or recovery of salmonid fishery stocks. If such an
exemption were granted and the authorized level of taking relative to
the population were similar to that previously authorized for
California sea lions at the site, the level of take would not cause the
eastern DPS of Steller sea lions to become in danger of extinction
within the foreseeable future throughout all or a significant portion
of its range. We note the concern regarding potential related increases
in illegal shooting that may be prompted by state control efforts. We
are also concerned about the increase over the last four years in the
level of reported illegal shootings of Steller sea lions in the Pacific
Northwest. Per the PDMP, we intend to monitor to detect any substantial
increases in illegal takes, and we intend to investigate any such
illegal takes.
Comments on Factor C: Disease or Predation
Comment 30: The MMC noted that Steller sea lions in the eastern
stock are preyed upon by transient killer whales and large sharks, but
the existing information does not indicate that the influence of
predation has increased or changed in any significant way. They stated
that the significance of killer whale predation on the eastern stock is
not controversial.
Response: We agree that the impact of killer whale predation has
not changed and is not controversial.
Comment 31: Several commenters referred NMFS to two studies by
University of Oregon researchers, one of which they alleged shows that
loss of nonhuman predators throws an ecosystem off balance and the
other they assert has documented increased predation of sea lion pups
by orcas and other large predators. A commenter stated that the number
of Steller sea lion females to make it to breeding age may decline as
predation on juveniles
[[Page 66157]]
continues and that NMFS needs to take these findings into consideration
in its threats analysis. Commenters stated that a more extensive study
must be conducted before delisting this species to ensure that the sea
lions can sustain their numbers. A commenter stated that the eastern
DPS should not be delisted until long-range data are collected and
evaluated on sea lion predation.
Response: We agree that the Steller sea lion is an important marine
predator. Other large marine predators, such as orcas, are also
important functioning components of the marine ecosystems of which
Steller sea lions are a part. Predation on Steller sea lions is a
natural phenomenon, and the recovery of the eastern DPS occurred in the
presence of such predation. We have no information to suggest that
mortality due to orcas or other large predators is likely to reverse
that recovery in the foreseeable future.
Comment 32: The MMC stated that the eastern stock is exposed to a
variety of diseases, as are all marine mammal populations, and that the
physical changes occurring in marine ecosystems (e.g., rising water
temperatures) may increase the risk of disease if sea lions are newly
exposed to pathogens or parasites that may have expanded or shifted
ranges. They concluded that the evidence to date does not reveal any
such cases, but exposure to new pathogens is difficult to detect and
often manifested in episodic disease events that are, by their very
nature, difficult to predict beforehand and diagnose afterward.
Response: Recent published findings (Goldstein et al. 2009)
indicate that some potential disease agents may have expanded or
shifted their range, resulting in an increased risk of disease to the
eastern DPS since the time of the Recovery Plan. We revised and updated
the section of the Status Review pertaining to disease to be clear
about what we know about Steller sea lion exposure and infection
disease agents, and the PDMP includes provisions to monitor for disease
outbreaks.
Comment 33: A commenter stated that there has been inadequate
consideration given to the potential spread of parasites and diseases
as rookeries become more densely occupied. The commenter said the role
of hookworm and herpes virus in the health and viability of Steller sea
lions was not properly considered in the draft Status Review. The
commenter believes that the draft Status Review failed to consider the
possible magnitude of health threats that are likely to increase with
the increasing density of habitat use in some areas. They stated that
diseases that occur at lower levels in more sparsely populated
rookeries can dramatically increase with increasing density and could
pose a threat to the eastern DPS. Individual commenters and
organizations provided comments related to the potential threat to
Steller sea lions from viruses that may cause miscarriages or other
adverse effects. A commenter noted that the draft Status Review does
not discuss a possible threat to Steller sea lions on increasingly
dense rookeries from the spread of a herpes virus that can cause cancer
and premature death in sea lions, and the potential impact from this
disease is also not considered in the proposed delisting. Another
commenter pointed NMFS to a news article that suggested that samples
from four dead, aborted fetuses revealed that they were killed by a
virus. The commenter stated that the news article indicated that a
relatively rare virus is being looked at as to the cause of an
unusually high number of premature births in Steller sea lions around
Kodiak Island. The commenter stated that the discovery that sea lion
miscarriages may be caused by a virus weighs against delisting the
eastern DPS.
Response: We have considered the information presented in these
comments and have revised the portion of the Status Review and final
rule related to the potential threat posed by disease to more fully
discuss the information about the incidence of herpes virus in
California sea lions in the North Pacific Ocean. Additionally, we
revised the Status Review (NMFS 2013a) to correct errors and to update
the best available information related to phocine distemper virus. We
are aware of the four miscarriages that were detected in the Kodiak
Archipelago in 2012 and the active research on samples from recovered
fetuses. In the Status Review (NMFS 2013a), we concluded that the risk
of disease to eastern DPS Steller sea lions is likely higher than was
known at the time of the Recovery Plan and is likely to increase over
time due to increased crowding and, especially, due to the emergence of
disease vectors that may be novel to this species. However, the
temporal and spatial pattern of the occurrence of new disease vectors,
Steller sea lion exposure to known and new disease vectors, and the
potential health effects at the individual and population levels from
particular disease agents are uncertain and difficult, if not
impossible, to predict. Such uncertainty and lack of foreseeability
regarding disease risk are not unique to the eastern DPS of Steller sea
lions. More importantly, available information does not indicate that
disease is causing population-level effects in the eastern DPS, such
that alone, or in combination with other threats, this factor is likely
to result in the species becoming in danger of extinction within the
foreseeable future throughout all or a significant portion of its
range. The foreseeable future for this threat factor is limited by our
present understanding of the health risks from some of these disease
agents necessary to be able to predict their likely future effect. We
recognize the need to continue to test and monitor for the presence of
novel and potentially threatening disease agents and we included such
monitoring into the PDMP (NMFS 2013b).
Comment 34: A commenter noted that the draft Status Review cites a
study by Richmond (2007) that reported hematocrit levels were lower in
Steller sea lions in southeast Alaska and recommended additional study
of the importance of this factor. The commenter highlighted that the
draft Status Review did not report that this same study found that
lower hematocrit levels are often found in animals that are hookworm-
infested, and that preliminary research suggested that greater than 50%
of Steller sea lions aged two to three months had hookworm in southeast
Alaska. The commenter noted that the draft Status Review cited a 2010
study by Rea showing higher levels of stress proteins in eastern DPS
Steller sea lions than western DPS, which may be affiliated with a high
prevalence of hookworm parasites in the eastern DPS where animals are
crowded. The commenter summarized that there is apparently no
information at all that can confirm a conclusion that disease or
parasitism are not problems.
Response: We have considered this information in our decision and
we revised our discussion of disease and parasitism in the Status
Review to be clearer about what we know, what uncertainties we have,
and what the potential risks are. Available data indicate that eastern
DPS Steller sea lions are naturally exposed to many parasites and they
probably always have been (NMFS 2008). Based on available data
discussed above, the prevalence of at least some parasites, such as
hookworm, may increase with crowding. This kind of density-dependent
phenomenon is normal and inherent in the recovery of this species
(e.g., they are now so numerous on some rookeries that we may see
effects of crowding). Monitoring for parasites is a component of the
PDMP. Based on a review of the best available information, parasitism
is not likely to cause the
[[Page 66158]]
eastern DPS Steller sea lion to become in danger of extinction within
the foreseeable future throughout all or a significant portion of its
range.
Comment 35: A commenter stated that ocean research shows that the
most dangerous pathogen for sea lions is algae toxins which cause brain
damage. The commenter stated that contaminated sea lions lose
orientation in the ocean, are not capable of catching fish, and starve
to death.
Response: We are aware that there have been large strandings of
marine mammals along the California coast concurrent with algal blooms
associated with production of domoic acid (e.g., Riva et al. 2009),
including hundreds of California sea lions along the central California
coast that died or exhibited signs of neurological dysfunction
concurrent with a diatom bloom (e.g., see Scholin et al. 2000). We have
considered that researchers have reported that an increase in epileptic
seizures and abnormal behavior in California sea lions can result from
exposure to low doses of domoic acid as a fetus (Ramsdell and Zabka
2008). Goldstein et al. (2007) concluded that domoic acid causes
chronic damage to California sea lions, and these health effects are
increasing. These and related findings in a closely related and
ecologically similar species suggest potential food chain exposure to
domoic acid to Steller sea lions in some locations. However, we do not
have evidence that algal toxins pose a threat to Steller sea lions and
at least some of these studies on California sea lions were focused on
southern California (e.g., de la Riva et al. 2009) where Steller sea
lions are not likely to be present. We are not aware of information
indicating that this is a disease agent that poses a threat with
population level consequences to the eastern DPS at present or in the
foreseeable future.
Comments on Factor D: Inadequacy of Existing Regulatory Mechanisms
Comment 36: USFWS stated that the Farallon National Wildlife Refuge
is strictly managed to help protect the populations of Steller sea
lions and other pinnipeds and seabirds. Measures are in place to
restrict access and protect sea lions and other species from human
disturbance.
Response: We considered this information in our evaluation of the
sufficiency of existing regulatory mechanisms and in our evaluation of
potential causes of the lack of recovery of Steller sea lions in this
part of the range.
Comment 37: A commenter expressed concern that existing regulatory
mechanisms will be inadequate to protect sea lions from shooting if the
population is delisted.
Response: Available information suggests the number of eastern DPS
Steller sea lions that are shot is small but has increased in the last
4 years. Following delisting, the U.S. portion of the eastern DPS will
continue to be protected under the MMPA, including provisions that
prohibit intentional shooting and many other forms of take. Protections
against unauthorized take also exist in British Columbia. Collectively,
the protections should be adequate if effectively implemented and
vigorously enforced. Illegal shooting could still occur, but we have no
information to suggest that levels will increase after delisting. The
PDMP should help to detect any significant sources of mortality,
including shooting.
Comment 38: The MMC commented that existing regulations may or may
not be adequate or, if adequate in concept or principle, may not be
implemented effectively. They noted that the 2011 stock assessment
report (Allen and Angliss 2011) for the eastern stock (as that term is
used under the MMPA) estimates the potential biological removal level
at 2,378 sea lions and estimates the total annual human-related take as
48.7 sea lions. They stated that fisheries take may be underestimated
because some fisheries that potentially injure or kill sea lions are
not observed, and estimates of sea lion takes for subsistence purposes
are sufficiently low that the error should not be substantial. MMC
noted other anthropogenic effects on sea lions including shooting and
entanglement in debris, and indicated that available information
suggests the number of affected animals is relatively small.
Response: We revised our discussion of Factor D regarding whether
existing regulations are adequate and are implemented effectively to be
more transparent about uncertainty underlying estimates of various
sources of take and other measures of threats. We agree that take in
fisheries may be underestimated because some fisheries that potentially
injure or kill sea lions are not observed, and that available
information on sea lion takes within the eastern DPS for subsistence
purposes indicate that the take level is low. Hence, available
information does not indicate that the level of take from fisheries,
subsistence, and/or other human-caused threats including shooting and
entanglement are likely to cause this species to become threatened
within all or a significant portion of its range in the foreseeable
future. Despite some uncertainty, we conclude that existing regulatory
mechanisms should be sufficient to address these threats to the eastern
DPS.
Comment 39: Private individuals and organizations questioned the
sufficiency of regulatory mechanisms, including the MMPA, to prevent
overutilization, a decline, and other threats to the DPS following
delisting. Commenters were particularly concerned about the possibility
of increasing requests for lethal management of sea lions.
Response: As discussed in response to comment 30 above, the MMPA
provides a mechanism for NMFS to regulate requests for lethal
management of Steller sea lions, and we anticipate that any authorized
level of lethal take would be small.
Comment 40: Commenters raised concerns about whether NMFS would be
able to, and would, respond quickly if the DPS declines quickly after
delisting.
Response: We crafted a process, through the PDMP, that ensures the
timely and regular consideration of relevant available data as well as
triggers for changes to monitoring, evaluation, and/or management. NMFS
intends to conduct an annual review of information collected as part of
the PDMP process. We understand that we will need to be responsive if
faced with evidence that indicates either the beginning of population
decline or the emergence or increase of threats that have the potential
for population level effects. We have the regulatory authority to act
quickly if the need arises to provide additional protection.
Comment 41: The State of Alaska commented that the Secretary must
take into account the efforts of States to protect the species. The
State commented that its monitoring and management of the eastern DPS
and fisheries within its range have successfully conserved the eastern
DPS. They commented that continued monitoring and management under the
MMPA and other authorities such as the Magnuson-Stevens Fishery
Conservation and Management Act and Canada's Fisheries Act will provide
adequate protections for the eastern DPS after delisting and will
maintain a robust population over the long term.
Response: NMFS has taken the efforts of States into account in its
decision to delist this species. For example, we considered the
agreement between NMFS and the State of Alaska regarding their fishery
management plans, state protections of terrestrial habitat in Oregon,
and other State efforts to protect this species (e.g., see section on
``State
[[Page 66159]]
Laws'' in the Status Review (NMFS 2013a)).
Comments on Factor E: Other Natural or Manmade Factors Affecting Its
Continued Existence
Comment 42: The MMC commented that the explanation for the loss of
rookeries in California and slower growth is not clear but if the
decline of Steller sea lions in California waters was caused by
competition with the California sea lion population, one could make a
reasonable argument that the Steller sea lion decline is a natural
phenomenon not warranting the special protections provided by the ESA.
They point out that, alternatively, one could also make a strong
argument for such protections if the cause is related to human impacts.
The MMC commented that NMFS should take a precautionary approach until
such time as it has data sufficient to ensure that Steller sea lions in
California have recovered or their range retraction is a result of
natural causes.
Response: As noted elsewhere, we must make our decision using the
best available scientific and commercial data, and the best available
data indicate that the eastern DPS no longer meets the definition of a
threatened species. We do not fully understand the causes underlying
the lack of recolonization of Steller sea lions in the southernmost
part of their historic range. However, the overall trend in non-pup
counts in California from 1990-2011 shows stability, not decline, and
pup production has increased at about 2.9% per year from 1996-2011. The
trend elsewhere in the range of this DPS is an increase in non-pup and
pup production. We included monitoring in the PDMP specifically to
determine if the current status changes in ways that could increase
overall risks to the eastern DPS.
Comment 43: Multiple comments discussed the potential adverse
effect of competition for prey and space from California sea lions on
Steller sea lions in the southern part of the range.
Response: In response to this comment, we reviewed and supplemented
the treatment of information related to the potential effect of
competition from California sea lions in the southern part of the range
and ensured that we are considering the best available scientific
information in this evaluation. As discussed in the Status Review
(section 3.5.6 on California) available information suggests that
competition with California sea lions may have been a factor (e.g., see
DeLong and Melin 2000) in the disappearance of the eastern DPS from the
southernmost part of its range. However, even if this is true, this
competition did not keep the population as a whole from recovering, and
we do not have information that indicates that the adverse of impact of
any such competition is likely to strengthen to a level where it might
affect recovery of this DPS in the foreseeable future.
Comments on Cumulative Threats
Comment 44: Multiple commenters indicated that threats remain to
this DPS and thus it is premature to remove ESA protections. A
commenter cited Gerber et al. (1993) as reporting that the majority of
Steller sea lions stranded in California between 1984 and 1990 were
underweight pups, which they stated supports a hypothesis of food
competition leading to nutritional stress and poor post-weaning
survival. Citing Hanni and Pyle (2000), they stated that Steller sea
lions are also at risk from entanglement in derelict salmon fishing
gear. They stated that more research is needed to understand the causes
underlying the continued lack of recovery of Steller sea lions in
California and the fact that there are continuing threats to the
species warrants its continued protection under ESA. Another commenter
stated that the fact that threats remain within a significant portion
of the range of the species and have the potential to spread farther
north provides reason to retain ESA protection for the eastern DPS.
Response: NMFS is required to assess the status of the eastern DPS
based on the best scientific and commercial data available. That
information indicates that this DPS does not meet the definition of a
threatened or an endangered species under the ESA. The Recovery Team
did not identify the need for biological recovery criteria for specific
subareas within the eastern DPS as it did within the western DPS. We
acknowledge that we do not fully understand the causes underlying the
lack of recolonization of Steller sea lions in the southernmost part of
their historic range. However, the overall trend in non-pup counts in
California from 1990-2011 shows stability, not decline, and pup
production has increased at about 2.9% per year from 1996-2011. The
trend elsewhere in the range of this DPS is an increase in non-pup and
pup production. We included monitoring in the PDMP specifically to
determine if the current status changes in ways that could increase
overall risks to the eastern DPS.
Comment 45: A commenter stated that NMFS needs to consider all
threats, individually and collectively, stating that, even if none of
these threats would, in isolation, devastate the population, in
combination they appear likely to do just that.
Response: We agree with the need to consider not only the current
and foreseeable effect of threats individually but also collectively,
and we have done so. The sustained recovery of the eastern DPS
indicates that individually and collectively, threats have not been
sufficient to thwart recovery, and there is no evidence indicating that
this situation is likely to change within the foreseeable future.
Comments Regarding Biological Recovery Criterion, Status, and Overall
DPS Trend
Comment 46: The NPS at Glacier Bay National Park commented that
several lines of evidence suggest that substantial population growth
has occurred in the eastern DPS of Steller sea lions since the 1970s
and that the eastern DPS has met the established demographic criterion
set forth in the Recovery Plan. They commented also that although there
is substantial evidence to suggest that there has been population
growth in pups and non-pups in the eastern DPS, recent studies suggest
that the area along the eastern/western DPS boundary may warrant
further investigation for several reasons. Another commenter stated
that the Alaska fishing community has seen first-hand the consistent
and significant expansion of the sea lion population in the southeast
region and that fishermen all along the coast have reported similar
abundances, which are reflected in NMFS's documents.
Response: We agree with the comments and considered the information
provided in our decision.
Comment 47: A tribal commenter noted that they have contributed
data regarding Steller sea lions in California, Oregon, and Washington,
and stated that they support delisting because the eastern DPS has met
the criteria set out in the Recovery Plan for population growth and
because threats to Steller sea lions do not rise to population level
impacts. They stated they have observed increased numbers of Steller
sea lion pups born in Washington, suggesting that the state may soon
have an established Steller sea lion rookery.
Response: We appreciate the data and other information provided by
this commenter. The Status Review notes that increased numbers of pups
are being observed in Washington State.
Comment 48: In support of delisting, the State of Alaska and
another commenter referred to statements in the 2008 Recovery Plan in
which the commenters state that NMFS concluded
[[Page 66160]]
that no threats to recovery of the eastern DPS of the Steller sea lion
have been identified, the population has been increasing for over 25
years, new rookeries have been created, and the population is at
historical high levels. The MMC commented that the growth in Steller
sea lion numbers in the various parts of the eastern stock's range, as
illustrated graphically in figures within the draft Status Review,
presents compelling support for recovery for the stock as a whole. They
noted that historical evidence indicates that the stock declined
because of shooting or predator control and numbers have increased
steadily since Steller sea lions were protected in 1970 under Canada's
Fisheries Act and in 1972 under the MMPA.
Response: We agree that the best available scientific evidence
supports recovery of the stock as a whole.
Comment 49: A commenter stated that rookery abundances in southern
and central California have declined while northern rookery abundances
have rapidly increased. Other commenters noted that one of the possible
factors in the decline of Steller sea lions in the southern part of
their range might be competition for food or space with California sea
lions, whose numbers have risen exponentially.
Response: We agree with these comments although we also note that
other factors, such as climate warming, contaminants, and possibly
other human impacts discussed in the Status Review may be contributing
to the failure of Steller sea lions to recolonize some of their
rookeries in the southernmost parts of their range and to their poor
performance at some, but not all, locations in California. We
acknowledge that we do not fully understand the reasons underlying the
mixed performance of Steller sea lions in parts of California. However,
it has not kept the population as a whole from recovering and does not
signify that the DPS is in danger of extinction throughout all or a
significant portion of its range or likely to become so within the
foreseeable future.
Comment 50: A commenter requested that NMFS provide additional
information explaining how the large gap in the breeding range of the
Steller sea lion in Washington State does not represent a reason for
concern regarding the Steller sea lion in Washington and farther south.
Response: NMFS notes that in both Oregon and British Columbia, data
regarding pup and non-pup numbers indicate a substantial increase in
abundance over a sustained period of time. Pitcher et al. (2007)
reported that the numbers of sea lions counted between 1989 and 2002 on
Washington haulouts increased significantly, at an average annual rate
of 9.2%. Johnson and Gelatt (2012) incorporated these data into their
analysis of the overall population trend based on non-pup data for the
eastern DPS. This analysis indicates that while counts are not yet at
historic levels, Steller sea lion abundance in Washington has been
increasing since the early 1990s (increasing trend seen in 1993). WDFW
also reported that an increasing number of newborn Steller sea lion
have recently been observed along the coast of Washington (ODFW and
WDFW 2010) but there are no active rookeries. However, the lack of
established rookeries in Washington has not impeded the overall
recovery of the population. Genetic data do not indicate that the gap
in the breeding range between rookeries in Oregon and British Columbia
has resulted in marked genetic discontinuity within the range such as
is observed between the eastern and western DPSs.
Comment 51: A commenter stated that the Oregon population appears
to be recovering better than populations in California and Washington,
but still falls short of meeting the demographic delisting criteria.
Response: In the 2008 Recovery Plan, NMFS did not specify subarea
recovery criteria. With respect to the biological (demographic)
recovery criterion, NMFS (2008) specified that the eastern DPS would be
considered for delisting when ``. . .[t]he population has increased at
an average annual growth rate of 3% per year for 30 years.'' Based on
abundance estimates derived from pup count data, this criterion has
been met and exceeded. However, in response to this comment, we revised
our description and discussion of trends throughout the range to more
be more transparent about trends in each of the major subregions within
the range of the eastern DPS.
Comment 52: A fishing organization stated that the eastern DPS has
increased on average about 3% over the past 30 years reaching all-time
highs in population size and population density. They stated that it is
possible that without large predator interaction (killer whale
predation), the population could reach its apex and crash altogether.
They noted that for many years their members have seen a large increase
in sea lion populations on new rookeries and in greater numbers in
southeast Alaska particularly. They believe that delisting should occur
due to population increases and sustainability models but that it will
also have large rewards for local communities and local fishermen.
Response: With respect to the idea that the current level of
abundance is at an all-time high, we note that in a thorough review of
available data on Steller sea lion abundance in the eastern DPS,
including examination of counts from the early 1900s, Pitcher et al.
(2007) concluded that the lack of standardization of counts prior to
the 1970s and the sparseness of historical data prevents a rigorous
comparison of historical and current abundance levels. We agree with
Pitcher et al. (2007) that this is the case. With respect to the
potential behavior of the population in the absence of predation, we
note that it is unlikely that large predator interactions will cease to
exist. Thus, we do not speculate on the effects of that hypothetical
scenario. Lastly, section 4 of the ESA specifies those factors that
NMFS can consider in its evaluation of the appropriate listing status
of species. NMFS does not consider benefits to local communities,
industries, or economics in our evaluation of whether a species meets
the definition of a threatened or endangered species under the ESA.
Comments on Trends in the Southern Part of the Range, California
Current Ecosystem, and California
Comment 53: The NPS at Point Reyes National Seashore commented that
while this DPS has shown recovery over the past three decades in Oregon
and Washington, there has been a lack of recovery at historical sites
in the southern breeding colonies for the species. They reported that
historically, Steller sea lions at the southern end of their range bred
at Point Reyes Headland. The NPS has been monitoring this population
and has noted that it has not recovered over the last several decades.
They stated that the species no longer breeds at Point Reyes, and the
number of animals remains low, with maximum counts rarely exceeding 5
animals per observation since the early 1980s. They have also
documented population increases in Northern elephant seals and harbor
seals at Point Reyes Headland over the past several decades (Sydeman
and Allen 1999). They stated that the decline in haulout activity and
lack of breeding recovery of Steller sea lions at Point Reyes Headland
is of concern for this species' overall recovery.
Response: We considered this information in our evaluation of the
recovery status of the eastern DPS. We agree that the lack of increase
in breeding of Steller sea lions at Point Reyes Headland is of concern
because
[[Page 66161]]
the cause of this poor performance is not understood. However, the best
available information indicates that the species' overall extinction
risk is quite low (see Goodman 2006 and NMFS 2013a). Following
recommendations in Goodman (2006), we intend to monitor the eastern DPS
to determine if this pattern of poor performance spreads northward.
Comment 54: A commenter stated that NMFS has determined that it is
appropriate to overlook the range contraction of the eastern DPS in the
south that has occurred for undetermined reasons and to ignore the
disparity in growth rates of Steller sea lions in the Alaska/British
Columbia portion with that of the southern portion of the range.
Another commenter stated that data showing a historic and continuing
fall in numbers clearly indicate that the southernmost Steller sea
lions should continue to be classified as endangered and additional
study of their decline, history, and prehistory should be undertaken to
understand this decline. A commenter stated that parts of the range
have not been reoccupied and rookeries have been lost. The commenter
stated that two rookeries have been lost and concludes that, until the
California trend improves and the full extent of the sea lions' range
has been recolonized, delisting is contraindicated. The commenter
stated that incremental losses of habitat and breeding grounds erode a
species' long-term survival.
Response: We considered the loss of rookeries in the southern part
of the range and the establishment of new rookeries in the north. In
general, we agree that incremental losses of habitat and breeding
grounds would tend to diminish a species' long-term viability. NMFS
shares concerns about the poor performance of Steller sea lions in
parts of California. However, based on the overall strong increase in
abundance in other parts of the range during the same time frame and
the establishment of new rookeries in the north, neither the loss of
the most southerly rookeries, the poor performance in other parts of
California such as the Farallon Islands, the overall failure for non-
pup abundance to increase in California overall during this same
period, nor the northerly shift in range renders this species in danger
of extinction throughout all or a significant portion of its range or
likely to become so within the foreseeable future.
Comment 55: Giving the example of Erlandson et al. (2011), a
commenter stated that there are now quantitative data about prehistoric
pinniped populations available and indicated that these data considered
with data on historical pinniped harvests might be used to reconstruct
thousands of years of past changes in the Steller sea lion population
in California.
Response: NMFS appreciates this information and is considering this
suggestion for future research. However, such a reconstruction is not
needed for our assessment of the status of the species here.
Comment 56: The USFWS at Farallon Islands Wildlife Refuge and a
scientific contracting company provided summaries, including data and
figures, of historical and recent information from the Farallon Islands
based on weekly counts of Steller sea lions since the early 1970s. They
commented that despite an overall increase in the eastern DPS, they are
concerned about the future fate of the Farallon and remainder of the
central California population of Steller sea lions. They stated that
despite efforts to protect the Farallon colony, numbers have not
increased in recent decades and its current status as a rookery is
questionable. They stated that if current trends continue this colony,
and possibly the entire central California population, may be
extirpated within the foreseeable future, continuing the trend of a
northward contraction of the species' range.
Response: We appreciate the long-term data from monitoring at the
Farallon Islands. We incorporated these data into our discussion of
historic and current status of Steller sea lions in California, and we
considered it in our evaluation of the listing status of the eastern
DPS. The PDMP includes evaluation aimed at determining whether the
trend of a northward shift of the species' range continues.
Comments on the Quality of the Science and Presentation of Information
Used in the Proposed Rule and Draft Status Review
Comment 57: A commenter requested that NMFS stop using the term
``abundance'' related to population trends (e.g., an ``abundance
decline'') because it conveys the impression of ``plenty'' even while
discussing ``lack.''
Response: Our use of the term ``abundance'' fits with common usage
of the term within population ecology and is not meant to mislead
readers with regard to the historic and recent trends of this DPS. In
response to the comment, we examined our use of the term to ensure that
we are not inadvertently giving the wrong impression, and we determined
that our use of the term ``abundance'' is appropriate.
Comment 58: A commenter stated that it is unacceptable to manage a
threatened species at minimal population levels because doing so keeps
them teetering on the brink of extinction. The commenter wrote that
should there be a natural catastrophe the eastern DPS could quickly
become imperiled. The commenter stated that while an average annual
population growth rate of 4.3% may be sufficient when a species is
listed, their continued viability is jeopardized when the protections
are removed.
Response: We agree that it would be unacceptable to purposely
manage a threatened species at minimal population levels. Under the
MMPA, our objective is to manage the population within its Optimum
Sustainable Population (OSP) level. OSP is defined by the MMPA, with
respect to any population stock, as the number of animals which will
result in the maximum productivity of the population or the species,
keeping in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element. (16 U.S.C.
1362(3)(9)). OSP is further interpreted in regulations (50 CFR 216.3)
as being a population size which falls within a range from the
population level of a given species or stock which is the largest
supportable within the ecosystem to the population level that results
in maximum net productivity. The eastern DPS of Steller sea lion is not
at a minimal population level, nor is it in decline. Goodman (2006)
conducted a risk evaluation for this population and concluded that if
his assumptions are correct, the risk of near- or medium-term
extinction for this population is very low. Working with partners, NMFS
developed a PDMP that is intended to monitor sufficiently to detect
population declines or an increase in threats so that management
measures can be adjusted if necessary.
Comment 59: A commenter stated that aerial surveys can result in
over-counts and concluded that it is likely that many sea lions are
being counted multiple times.
Response: We are aware that there are sources of variability within
any survey that can result in animals being missed (e.g., because they
are at sea foraging) or possibly counted twice (e.g., because all sites
cannot be counted on the same day and an animal may move, especially
between nearby haulouts). However, we do not have evidence that aerial
surveys would tend to result in over-counting of Steller sea lions in
the eastern DPS. This is especially true of pups, the portion of the
population on which population size estimates presented in the Status
[[Page 66162]]
Review are based. Count data used to estimate population trends and
evaluate status are of two types: counts of pups about one month of age
and counts of animals over one year of age (i.e., non-pups). While the
techniques used for counts of both pups and non-pups have changed over
time, and thus data collected during different periods using different
techniques (e.g. on-site counts, oblique photo counts, or vertical high
resolution photos) are not directly comparable (Fritz and Stinchcomb
2005; Pitcher et al. 2007; Kaplan et al. 2008; DeMaster 2009; NMFS
2008, 2010), counts of pups on rookeries conducted near the end of the
birthing season are nearly complete counts of pup production. These
counts can be expanded to estimate approximate total population size
based on an estimated ratio of pups to non-pups in the population
(Calkins and Pitcher 1982, Trites and Larkin 1996). For the period
until 2002, we rely heavily on the analyses in a comprehensive peer-
reviewed published paper (Pitcher et al. 2007) and have updated this as
data are available. We are aware that some pups die and disappear
before the counts are made and a few are born after the counts are
conducted (Trites and Larkin 1996), and we considered this in our
analysis and evaluation of trend data. We also acknowledge that the
methodology results in a very general estimate of population size as
several factors can affect the accuracy of the estimates (NMFS 2008).
In response to this comment, we revised the section of the Status
Review on population trends to make certain that the basis of our
population trend conclusions is clear and any biases, assumptions, and
uncertainties are transparent.
Comment 60: Multiple commenters stated that more long-term study is
needed before we can be sure that Steller sea lions will sustain their
populations, before we will know and understand the reasons for the
lack of recovery and the range contraction in the southern part of the
range, and/or before we will understand the impact of the tsunami-
generated marine debris and/or other threats on the population.
Response: We disagree that more study is needed before NMFS can
make a decision about the appropriate status of this species under the
ESA. NMFS is required to use the best available scientific and
commercial data in its decision. We have compelling evidence of
sustained increases in the overall abundance of eastern DPS Steller sea
lions. While their breeding range has shifted to the north, there has
not been overall contraction of the breeding range. While there are
residual threats and potential threats that may be emerging, such as
climate change and ocean acidification, there is no evidence that these
factors are likely to have negative effects that are strong enough to
cause this species to decline within the foreseeable future, nor
satisfy the definition of a threatened or endangered species.
Comment 61: Multiple commenters stated that the agency has not
based its proposed decision on the best available science.
Response: We disagree. We reviewed our files to ensure that the
Status Review and rule utilize the best available scientific and
commercial data available. Where commenters suggested additional
sources of information, we reviewed and incorporated such information
as appropriate. Further, we submitted the Status Review through two
rounds of independent peer review.
Comments on Ecosystem Considerations and Effects of the Delisting on
Fish Species
Comment 62: Several commenters cited concerns about the effects of
Steller sea lion predation on salmon, sturgeon, and/or the ecosystem. A
commenter concluded that the delisting will be a significant step in
protecting both sturgeon and salmon in the Columbia River. A commenter
stated that future management of Steller sea lions must be more
cognizant of their impacts on the ecosystem. This commenter stated that
the current growth rate cannot be maintained indefinitely. A commenter
stated that the western Washington ecosystem simply cannot support
increasing populations of pinnipeds, likely to levels above their
historic abundances, while meeting ESA recovery goals for Southern
Resident killer whales and salmon species.
Response: The effects of Steller sea lion predation on listed
salmon or on other fish species are not appropriate factors for us to
include in our evaluation of whether the eastern DPS of Steller sea
lion should be listed under the ESA.
Comment 63: Multiple commenters argued against the delisting for
several reasons: Steller sea lions are a necessary and/or a natural
part of the food chain; we need Steller sea lions in their habitat as
part of that food chain; biodiversity must be retained; all animals
have a place in the ecosystem; predators play an important role in
maintaining the health of ecosystems; and humans must learn to live
alongside other species and not eliminate them.
Response: We agree that the Steller sea lion is an important part
of marine ecosystems. We note that one of the stated purposes of the
ESA is to ``provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved.'' If
a species does not meet the definition of a threatened or endangered
species, it is inappropriate for it to be listed under the ESA. A
recovered eastern DPS of Steller sea lions will continue to be a viable
part of these marine ecosystems.
Comments on Steller Sea Lion Habitat
Comment 64: The State of Alaska commented that NMFS should indicate
that delisting of the eastern DPS of Steller sea lion under ESA section
4 necessarily removes the critical habitat designation for the eastern
DPS.
Response: Comments regarding the critical habitat designated for
the Steller sea lion at 50 CFR 226.202 are beyond the scope of this
rulemaking. In any event, removing the eastern DPS from the List of
Endangered and Threatened Wildlife does not remove or modify that
designation as described below.
ESA section 4(a)(3) requires the Secretary (through NMFS) to
designate critical habitat for listed species, to the maximum extent
prudent and determinable, concurrently with the listing of a species,
and gives the Secretary discretion to revise a designation from time to
time as appropriate. Designations and revisions of critical habitat
must be based on the best scientific data available and be informed by
consideration of the economic impact, the impact on national security,
and any other relevant impact of such designation or revisions. The ESA
does not speak directly to the status of designated critical habitat
when the agency later amends a species listing by dividing it or by
delisting a portion of the population and retaining the rest. Notably,
critical habitat does not lose its biological and conservation
relevance to the still-listed species simply because the species
listing is amended. Moreover, carrying forward an existing critical
habitat designation can enhance the protection provided to the still-
listed species because the carried-forward designation protects habitat
features essential to the species' recovery from adverse modification
or destruction in section 7 consultations. Given that Congress has not
spoken directly to this issue in the statute, the benefits of
designated critical habitat, the ESA's broad purpose to conserve the
ecosystems upon which endangered and threatened species depend, and
taking a reasonable precautionary approach, we construe the ESA to
provide in these circumstances for keeping existing
[[Page 66163]]
critical habitat designation in place as a transitional matter until
the designation is amended through a further rulemaking.
For Steller sea lions, the critical habitat designated in 1993 (58
FR 45269; August 27, 1993) continued to be valid following the 1997
rule dividing the listing into the eastern and western DPSs (62 FR
24345; May 5, 1997). This final rule does not revisit the codified
critical habitat designation, which remains in place following the
delisting of the eastern DPS as a transitional matter for the listed,
endangered western DPS, as the designated critical habitat supports the
western DPS's important biological functions (e.g., feeding and
resting). This approach is consistent with the critical habitat
designated for northern right whales in 1994 remaining in place
following the 2008 division of the listing into two separate species,
the North Atlantic and North Pacific right whales (75 FR 61691; October
6, 2010).
NMFS will undertake a separate rulemaking to consider amendment to
the existing critical habitat designation that takes into account any
new and pertinent sources of information since the 1993 designation,
including amending the critical habitat designation as appropriate to
reflect the delisting of the eastern DPS in this final rule. In the
interim, during ESA section 7 consultations for federal actions that
may affect currently designated Steller sea lion critical habitat, NMFS
will address effects to such habitat in terms of effects to those
physical and biological features essential to the conservation of the
western DPS, and not the delisted eastern DPS.
Comment 65: The NPS at Glacier Bay National Park provided
information about recently established haulout sites that are used by
Steller sea lions but that are not included on Figure 3.1 in the draft
Status Review. Several of these sites have been previously identified
and documented in the scientific literature.
Response: We included this information in the revised Status
Review.
Comments on Extinction
Comment 66: A commenter stated that NMFS's extinction risk analysis
is based on assumptions that will no longer be valid once the
population is delisted.
Response: The conclusions of the extinction risk evaluation
undertaken by Goodman (2006) were based on whether his working
hypothesis was, and continues to be, true. Elements of this working
hypothesis were that: (1) The population is not sensitive to ongoing
regime-frequency environmental variation; (2) the depressed, but steady
and positive, growth rate north of California is owing to a combination
of ecosystem modification and possible incidental take that is stable
and sustainable; (3) the carrying capacity is not less than 46,000
total individuals; and (4) the lack of recovery of the California
portion of the population is owing to a range contraction responding to
the warming trend of the past several decades. Goodman (2006) further
stated that ``we could judge this population to be at low risk provided
management maintains the current level of protection, keeps human
impact at no more than its present level, and monitors to make sure
that evidence contrary to the hypothesis complex will be detected and
the risk classification and management will be revised as indicated.''
With regard to Goodman's (2006) caveats that may change immediately
upon delisting, the primary issues are whether or not management
maintains the current level of protection and keeps human impact at no
more than its present level, whether monitoring and management is
sufficient post-delisting to detect evidence indicating that the
hypothesis complex is not true, and to respond appropriately if such
evidence is obtained. These points are inter-related. As discussed in
the section regarding the adequacy of existing regulations (Factor D),
the eastern DPS will continue to be protected under the MMPA and other
laws. The MMPA provides some of the same protections as the ESA. The
underlying premise of applying protections under the ESA is that a
threatened or endangered species requires greater protection than a
recovered species or other species that does not meet the definition of
threatened or endangered. Thus, the eastern DPS should not require as
great a degree of protection post-delisting as it did when it was
threatened. NMFS has taken the caveats in Goodman's (2006) conclusions
into consideration in our delisting decision and the formulation of the
PDMP.
Comments on the Post-Delisting Monitoring Plan
Comment 67: A commenter stated that the draft PDMP provides no
assurance that more will be done besides monitoring the number of
animals killed illegally or as part of lethal management programs.
Response: NMFS disagrees with this comment. The PDMP, if fully
implemented, will enable NMFS to verify that the species remains secure
from the risk of extinction after the protections of the ESA are
removed. Following USFWS and NMFS Joint PDMP Guidance (USFWS and NMFS
2008), we designed monitoring to determine if the status of the species
begins to change or deteriorate, and if a substantial decline in the
species (numbers of individuals or populations) or an increase in
threats is detected, NMFS can take measures to halt the decline or
reduce the threat(s) so that re-listing the eastern DPS as a threatened
or endangered species is not needed. While the ESA requires not less
than five years of monitoring, NMFS, following the input of the
Recovery Team, developed a PDMP for a period of at least ten years.
NMFS will work with multiple partners post-delisting on the
implementation of the plan.
Comment 68: A commenter expressed concern about the level of
entanglement-related mortality in tribal fisheries and the lack of
associated data since tribes began refusing in the 1990s to carry
federal observers. Another comment stated that it is not clear from the
draft PDMP whether, or how, NMFS plans to remedy the lack of monitoring
of fishery-related deaths of sea lions from the DPS in Canada, Alaska,
or the various tribal gillnet fisheries in Oregon and Washington.
Response: As noted in the draft Status Review, researchers collect
systematic data related to the incidence and types of entanglement of
Steller sea lions in some parts of the range. Treaty Indian fisheries
in Oregon and Washington are conducted in freshwater rivers, coastal
estuaries, and in the Puget Sound region under the authority of Indian
treaties; therefore, the MMPA's section 118 requirements, including
observer monitoring, do not apply (60 FR 45086; August 30, 1995, and 74
FR 58859; November 16, 2009). If any marine mammal bycatch associated
with tribal fisheries were to present a biological concern for
applicable stocks, NMFS would consider invoking the treaty-rights
principle of ``conservation necessity'' to protect marine mammals (74
FR 58859; November 16, 2009). Additionally, NMFS regularly considers
the need to monitor incidental take of various fisheries, including
those within the range of the eastern DPS. For example, in 2013 NMFS
will implement a second year of observing marine mammal (including
Steller sea lion) take in the southeast Alaska salmon gillnet fishery.
NMFS does not have jurisdiction to monitor fishery-related serious
injury or mortality in Canada.
Comment 69: A commenter stated that monitoring of the Steller sea
lion-human interactions in ports, harbors, and inland waterways does
not address any
[[Page 66164]]
of the listing factors, is discussed in the PDMP at a level
disproportionate to the level of concern about the issue, and could be
used to support taking lethal management action.
Response: We reviewed the relevant section of the PDMP and revised
it because this is not expected to be a significant threat for Steller
sea lions.
Comment 70: A commenter noted that while the monitoring plan
appears to count on the continued collection of stranding data, NOAA
has decided not to include funding for the John H. Prescott Marine
Mammal Health grant program for the monitoring of stranding. The
commenter noted that without this funding support, the coverage of
stranding response will drastically reduce as will the ability of
researchers to fund histopathology and other analyses to determine the
cause of Steller sea lion deaths. The commenter encouraged NOAA to
continue funding stranding response.
Response: We understand the commenter's concern regarding the
uncertainty in the availability of funding in future years for
stranding programs. However, Prescott funding is not the only source of
funding for stranding programs available to us. While we cannot predict
future funding levels, we understand the high value of stranding
networks to our ability to detect increases in threats over time to
this DPS, and we will endeavor to fund stranding programs to the extent
possible consistent with available budgetary resources.
Comment 71: A commenter suggested that NOAA develop a data-sharing
memorandum of agreement for data collected under the PDMP to protect
researchers' work from being published by others.
Response: In response to this comment, we added a sentence to the
PDMP that acknowledges the sensitivity of unpublished data.
Comment 72: A commenter expressed concern about the interpretation
of the proposed response trigger in the PDMP. The commenter noted that
the eastern DPS may be approaching carrying capacity for the ecosystem,
and we do not know the dynamics of how the population will interact
when it is at or near carrying capacity.
Response: We agree that NMFS will need to evaluate carefully any
future change in population trend or recovery rate. However, it is
important to include response triggers in PDMPs so that it is clear
when the agency needs to increase the depth of its evaluation, obtain
additional information, or take protective management action to reduce
a threat. In response to this comment, we added language to the PDMP to
clarify what action(s) the response triggers will prompt and to remind
managers to evaluate potential causes of any population change,
including changes that may result from carrying capacity being reached
or exceeded.
Comment 73: The State of Alaska endorsed the proposed PDMP to
ensure that the current increasing population trend continues. It
stated that refinements to the PDMP could maximize efficiencies while
reducing sampling uncertainties and that they seek to ensure that
monitoring efforts remain adequate to detect population trends and any
emerging threats to the eastern DPS while ensuring support for
continued recovery efforts for the western DPS. The State of Alaska
suggested that proposed monitoring to identify transboundary movements
between the eastern DPS and the western DPS be refined to conduct
several replicate surveys between Icy Strait and Prince William Sound
during May and June to enhance count calibration and the ability to
identify inter-stock movement and effects at the population level. It
noted that sea lion counts in southeast Alaska and Prince William Sound
can be highly variable. It noted that replicate aerial surveys would
augment the tracking of non-pup trends, which is also affected by high
variability in day-to-day counts. The State of Alaska also suggested
refinements to the continuation of the resight program related to the
monitoring of vital rates. It recommended that no new cohort branding
should occur in southeast Alaska unless there is evidence of a
population decline, in which case vital rates would be required in
order to better understand the mechanism behind the decline. It stated
that the reproductive rate portion of the resight program should
continue until 2015 instead of 2021, noting that reproductive rate
surveys are particularly intensive and expensive. It stated that their
best estimate at present is that data through 2015 will be sufficient
to run their current reproductive rate analysis to completion and that
a reduced level of surveys beyond this point may be adequate to
maintain a less precise estimate of reproductive rate. It stated that
continued, less-intense monitoring for survival, movement, and
entanglement/gear ingestion rates would be productive beyond 2015 and
would free up resources for surveys in regions of greater concern.
Response: We appreciate the endorsement of the PDMP by the State of
Alaska. In consultation with partners, including the State of Alaska,
and in response to public comment, we have revised the PDMP. We agree
with the comments regarding replicate surveys to monitor transboundary
movements and to enhance count calibration. We added a brief section to
the PDMP to include the potential for replicate surveys in at least one
monitoring year. However, throughout the PDMP period, vital rates work
may be necessary to evaluate the potential cause(s) of any downward
trend in abundance.
Comment 74: The State of Alaska suggested that NMFS should clarify
whether aerial surveys will be conducted every four years or every two
years in furtherance of the sampling regime to monitor trends in
abundance.
Response: We clarified in the PDMP that range-wide aerial surveys
of the eastern DPS should be conducted every 4 years, with more
frequent surveys in southeast Alaska.
Comment 75: The NPS at Glacier Bay National Park commented they
agree with NMFS that monitoring of the eastern DPS should continue as
outlined in the draft PDMP and should include assessment of population
trends (pups and non-pups) at regular intervals via aerial surveys,
continued estimation of age-specific survival and reproductive rates of
marked individual Steller sea lions, and possibly a more focused effort
to monitor the influence of cross-boundary movements by Steller sea
lions on population trends near the eastern/western DPS boundary.
Response: We agree and have made minor revisions to the plan to
include the possibility of replicate surveys to track transboundary
movements and associated population trends. The PDMP also includes
monitoring to continue to assess how movement across the western-
eastern DPS boundary may be affecting non-pup counts in each DPS.
Comment 76: Several commenters recommended that PDMP include
disease monitoring. The NPS at Glacier Bay National Park recommended
that the Alaska Marine Mammal Stranding Network continue to respond to
stranded Steller sea lions throughout the eastern DPS, with particular
emphasis on monitoring (1) for the presence of infectious disease
agents and potentially novel pathogens and (2) for unusual mortality
events. The State of Alaska recommended that health, genetics, and
disease sampling be made part of a directed research program and said
that monitoring should not rely on opportunistic examination of
stranded individuals. The USFWS at Farallon Islands Wildlife Refuge
also stated that updated studies on disease are needed.
[[Page 66165]]
A commenter stated that such sampling should avoid unnecessary
disturbances during the breeding season.
Response: We agree with these comments, and we have revised the
PDMP to include disease monitoring as a regular, not incidental,
component of the plan.
Comment 77: The USFWS at Farallon Islands Wildlife Refuge stated
that updated studies on contaminants and prey use are needed, as are
studies to understand the impacts of these factors on sea lion
population trends. They believe that such studies will be important to
better understand the status, and to predict future trends, of the
eastern DPS, including the central California portion and the northward
range contraction.
Response: We agree that contaminant studies are an important
component of the PDMP as are studies to understand the impacts of
contaminants on Steller sea lions, especially in the southern part of
the range where recovery has not occurred. In response to this comment,
we revised the PDMP to indicate that such monitoring should be a
focused, not incidental, component of the plan; however, the level of
such monitoring will be dependent on funding availability. We also
included language in the PDMP to clarify that we intend to work with
monitoring partners and contaminant experts to identify the
contaminants of highest priority for monitoring for this DPS.
Comment 78: The NPS at Glacier Bay National Park stated that post-
delisting monitoring should include documentation of human-related
sources of mortality such as entanglements, shootings, and fishery
interactions with Steller sea lions. They stated that periodic reviews
of all records of Steller sea lion mortalities would be advisable to
identify any trends in disease agents or other causes of death that may
warrant management attention. The State of Alaska also commented on the
need for monitoring of entanglement rates as part of the regular brand-
resight program. They strongly recommended that monitoring
entanglements and fishery gear interactions continue as standard
surveys and not rely completely upon incidental reports and stranding
network data. They cautioned against lumping monitoring of
``entanglement'' with monitoring of ``fishery gear interaction''
because entanglements (e.g., packing bands or line around the neck)
represent passive interactions with marine debris, whereas gear
interactions (e.g., ingested hooks) represent direct interactions with
fisheries. They believe that grouping these two effects together would
artificially inflate the perceived effects of both and complicate
efforts to reduce entanglements.
Response: We agree with these comments. We have monitoring to
assess potential threats from entanglement in marine debris and from
incidental takes in fisheries as separate bullets in the PDMP. The two
categories interact and overlap.
Comment 79: The State of Alaska stated that while monitoring for
degradation of terrestrial and marine habitats is a proposed objective
of this plan, there are no specific activities proposed in the draft
PDMP to accomplish this objective.
Response: In response to this comment we modified the PDMP to
include activities that will help us monitor for degradation of
terrestrial and marine habitats.
Comment 80: The State of Alaska commented that NMFS should take
steps to improve the clarity, consistency, and accuracy of its
communication with the public regarding regulation of sea lions. They
stated that effective protection of the resource depends on such
clarity, and confusion about continuing regulations under the MMPA may
increase when the public learns that the eastern DPS has been delisted
under the ESA. They suggested that simple and obvious guidelines be
presented. They stated that coordination among management and research
entities should also be improved to ensure that researchers are given
adequate time to provide information that will better inform management
actions.
Response: We agree that it is important to clearly communicate with
the public on laws and regulations regarding Steller sea lions. NMFS
and its partners have undertaken numerous outreach activities to
improve the clarity of such communications. With regard to coordination
among managers and researchers, we agree that researchers should have
adequate time to develop research results.
Comment 81: Various entities commented on their willingness and/or
desire to be involved in implementing the PDMP. The USFWS at Farallon
Islands Wildlife Refuge hopes to be included in any future monitoring
efforts for Steller sea lions sponsored by NOAA. The NPS at Point Reyes
National Seashore stated that they will continue to monitor the species
at Point Reyes and provide NMFS with data as needed. The NPS at Glacier
Bay National Park stated that they will continue to collaborate with
NMFS and the Alaska Department of Fish and Game (ADF&G) to provide
observations of marked Steller sea lions that occur in the park and to
assist with the Alaska Marine Mammal Stranding network. The State of
Alaska stated that ADF&G expects to contribute substantially to the
population monitoring effort, and anticipates continuing to work with
NMFS in finalizing and implementing the PDMP. The State of Alaska
requested that NMFS cooperate with the State to the maximum extent
practicable in the monitoring efforts and the finalizing of the PDMP.
Response: We appreciate these comments and offers to participate in
implementing the PDMP. We revised our list of partners in the PDMP
accordingly. We met with the State of Alaska and sought their input on
finalizing the PDMP, especially those parts of the PDMP that refer to
monitoring within Alaska. Under the ESA, NMFS retains overall
responsibility for ensuring that, post-delisting, sufficient monitoring
is undertaken to verify that the recovered species remains secure from
risk of extinction after the ESA protections are no longer are in
force.
Comments on the Effects of Delisting the Eastern DPS on the Western DPS
Comment 82: Hundreds of commenters expressed their concern about
the effects of the proposed delisting on both the eastern DPS and the
western DPS, stating that the action could or would jeopardize or harm
the eastern DPS, as well as jeopardize or further endanger the western
Steller sea lions that share the range of the eastern DPS. A commenter
stated that, since trends strongly suggest that the eastern DPS and the
western DPS are shifting towards each other (citing Pitcher et al. 2007
and Mathews et al. 2011), and in light of recent evidence that Steller
sea lions from both DPSs are living at the same rookeries in southeast
Alaska, within the territory of the eastern DPS (citing Gelatt et al.
2007), it is irresponsible to delist the eastern DPS and effectively
remove ESA protections for western DPS sea lions living east of 144
[deg]W longitude. A commenter stated that the draft Status Review fails
to address this threat adequately. This commenter stated that the MMPA
cannot protect against this threat because it authorizes take without
providing a requirement or a means to discriminate between the eastern
and western populations. Another commenter concluded NMFS should
preserve ESA section 9 prohibitions on lethal take for all Steller sea
lions to ensure that western DPS sea lions are protected against
threats such as
[[Page 66166]]
intentional or unintentional take that may occur as a result of lifting
ESA protections from eastern DPS Steller sea lions.
Response: We share the concern regarding the potential effects of
delisting the eastern DPS on animals from the western DPS. Jemison et
al. (2013) documented the regular movement of Steller sea lions from
both the eastern DPS and western DPS across the defined DPS boundary.
It is clear that individuals originating from some parts of the western
DPS, including members of both sexes, utilize habitat east of 144
[deg]W longitude for a variety of reasons.
Jemison et al. (2013) analyzed sea lions branded as pups in each
DPS from 2000-2010 to estimate probabilities of a sea lion born in one
DPS being seen within the range of the other DPS. They found that males
from both populations regularly traveled across the DPS boundary; that
western DPS females sometimes travel east of 144 [deg]W longitude, but
eastern DPS females rarely traveled west of 144 [deg]W longitude; and,
that some western DPS females have permanently emigrated to the east,
reproducing at two established rookeries east of 144 [deg]W longitude.
They report that western DPS animals began moving east in the 1990s
following steep population declines in the central Gulf of Alaska. They
conclude that it is unclear whether eastward movement across the DPS
boundary is due to less optimal conditions in the west or a reflection
of favorable conditions in the east.
Despite the regular movement of western DPS animals from some parts
of the western DPS to areas east of 144 [deg]W longitude, data indicate
that the probability of occurrence of a western DPS animal east of this
demarcation declines with distance from the boundary, that it is
highest in southeast Alaska, and that at some distance from the
western/eastern DPS boundary the probability of occurrence of a western
DPS animal becomes negligible. Jemison et al. (2013) reported that over
85% of all western DPS Steller sea lions observed east of the boundary
were at locations in the northern region of southeast Alaska.
We disagree that delisting the eastern DPS effectively removes
protections from endangered western DPS animals occurring east of east
of 144 [deg]W longitude. Take of all Steller sea lions occurring east
of east of 144 [deg]W longitude will remain prohibited under the MMPA,
and take of western DPS Steller sea lions is also prohibited under the
ESA regardless of where the animal is found. Following publication of
this final rule, NMFS will separately consider whether additional
protection is needed for western DPS Steller sea lions in those parts
of their range east of 144 [deg]W longitude.
Summary of Peer Review Process
In accordance with our Interagency Cooperative Policy on Peer
Review (59 FR 34270; July 1, 1994), we requested expert review of
drafts of the Status Review, the PDMP, and the proposed rule. This
policy requires NMFS to solicit independent expert review from at least
three qualified specialists. NMFS solicited such expert reviews from
four non-federal scientists with expertise in population ecology and
management of eastern DPS Steller sea lions. Input from this peer
review of the earlier draft of the Status Review was incorporated into
the version of the draft Status Review that was released for public
comment. Further, during the public comment period on the proposed
rule, NMFS solicited peer review of these documents from seven experts:
two from academia, two from a Canadian federal resource agency, two who
had relevant expertise and were from other offices within NOAA, and a
former state biologist with expertise on Steller sea lions. Four of
these seven were the same as the people who reviewed the draft status
review prior to its release. One of these four (an academic reviewer)
notified us that he was not available, and the two federal reviewers
did not respond. Thus, on the draft status review released for public
comment, we received comments from four reviewers, three of whom have
expertise on Steller sea lions (and who had reviewed an earlier draft
of the document), and the fourth who has particular expertise on
potential climate change effects. We have considered all of the peer
review comments received, summarized the content of this expert input
below, and where applicable, responded to the comments below.
Summary of Peer Reviewer Comments
All peer reviewers agreed with NMFS's proposal to delist the
eastern DPS of Steller sea lion. Of the four peer reviewers who
reviewed the released versions of the documents, Peer Reviewer 1
concluded that the draft Status Review provides a thorough review of
the background, biology, available data, and likely threats to the
eastern DPS. Peer Reviewer 1 stated that the proposed rule provides a
thorough and efficient review of the status of the eastern DPS and
whether the DPS qualifies for removal from the ESA list of threatened
species. Peer Reviewer 2 stated that all of the relevant literature and
assessment documents are referenced in the draft Status Review and
that, overall, the status review is thorough and well-written. Peer
Reviewer 2 expressed full agreement with all of the key conclusions of
the proposed rule and the draft Status Review and recommended that this
DPS be delisted. Peer Reviewer 3 concluded that the proposed rule and
draft Status Review make a compelling case that the eastern DPS is not
currently at risk and should be delisted. Peer Reviewer 4 stated that
the draft Status Review does an excellent job of summarizing current
knowledge about population delineations, basic biology, and population
assessment of Steller sea lions relative to evaluating the delisting
criteria established by the Recovery Team. Peer Reviewer 4 concluded
that the draft Status Review presents clear factual information and has
drawn appropriate conclusions that are well supported by current
knowledge.
Peer Reviewer Comment on Status: Peer Reviewer 3 suggested that the
proposed rule and draft Status Review be revised to allow for the
possibility that the eastern DPS was never at risk. However, this peer
reviewer stated that he/she did not think a retrospective analysis of
the 1997 status is necessary nor should it be a priority.
Response: NMFS does not agree that the status review should be
revised to allow for the possibility that this species was never
threatened. The ESA listing of the Steller sea lion as a single species
occurred prior to the recognition of western and eastern DPSs of
Steller sea lions. The original listing followed widespread intentional
take throughout parts of the range of what is now the eastern DPS, as
well as other actions that led to the considerable reduction in
population size and loss of rookeries. At the time of the recognition
of separate DPSs with differing listing statuses, data were
insufficient to determine that factors causing declines in the western
DPS or a lack of recovery in the southern part of the eastern DPS would
not spread to other parts of the range of the eastern DPS. Hence,
because the eastern DPS was at risk of becoming endangered within the
foreseeable future, listing of the eastern DPS under the ESA remained
appropriate. This allowed us to have a longer period of sustained
increase over which to gain confidence that the growth of the eastern
DPS was not temporary and was not likely to reverse after a short
period. The protections afforded by the ESA likely facilitated the
recovery of the eastern DPS.
Peer Reviewer Comment on Habitat: Regarding section 3.2.1 of the
Status
[[Page 66167]]
Review (NMFS 2013a), Peer Reviewer 2 recommended that NMFS add that, in
the region between Cape St. Elias and Cross Sound, there are few areas
with rocky shorelines and no offshore islands that are preferred
habitats for Steller sea lions hauling out and pupping/breeding. Thus,
there is habitat discontinuity between these locations.
Response: We modified section 3.2.1 of the Status Review to include
this information.
Peer Reviewer Comments on the PDMP: Peer Reviewer 4 believes that
consideration should be given to broadening PDMP partnerships by
including academic and other non-government organizations with Steller
sea lion research expertise as Regional Collaborators.
Response: We agree and have broadened our list of partnerships by
including academic and other non-government organizations with Steller
sea lion research expertise as Regional Collaborators.
Conclusions and Listing Determination
Based on information in the Recovery Plan and review of new
information discussed in the Status Review, including information
received from public and peer reviewer comments, we find the following:
The biological (demographic) criterion for delisting
identified in the Recovery Plan has been met.
None of the residual or emerging potential threats
evaluated under the five ESA section 4(a)(1) factors, individually or
cumulatively, is likely to result in the species becoming in danger of
extinction within the foreseeable future throughout all or a
significant portion of the range of the DPS.
NMFS has taken actions to address the ESA Listing Factor
Criteria set forth in the Recovery Plan.
Following delisting of the eastern DPS, the MMPA and other
laws and regulations, if effectively implemented, should promote the
continued recovery of the eastern DPS of Steller sea lions such that it
is not likely to become in danger of extinction within the foreseeable
future throughout all or a significant portion of its range.
Therefore, NMFS finds that removal of the eastern DPS of the
Steller sea lion from the list of threatened species is warranted
because the DPS no longer meets the definition of a threatened species.
We intend to implement the PDMP for ten years beyond delisting to
ensure that recovery continues.
Post-Delisting Monitoring Plan (PDMP)
NMFS developed a PDMP to govern monitoring following delisting. As
directed in our PDMP guidance (USFWS and NMFS 2008), the primary goal
of this monitoring is to ensure that the status of the eastern DPS ``.
. . does not deteriorate, and if a substantial decline in the species,
. . . or an increase in threats is detected, to take measures to halt
the decline so that re-proposing it as a threatened or endangered
species is not needed.'' If a population decline or an increase in
threats is detected, NMFS will take measures in collaboration with the
States and other partners to prevent the species from becoming
threatened again. The draft PDMP was included as an appendix to the
draft Status Review, was released for public comment, and was revised
in consideration of that comment.
The PDMP has three primary goals:
Monitor the population to detect changes in trends in pup
production and adult/juvenile (non-pup) counts and vital rates
(survival and birth rates), and to continue to assess how movement
across the western-eastern DPS boundary may be affecting non-pup counts
in each DPS.
Monitor threats that potentially could affect the
sustainability of the recovery of the eastern DPS.
Determine if there is a northward extension of the
patterns observed in southern California where rookeries were
abandoned, or in parts of central California, such as the Farallon
Islands, where population increase either did not occur or occurred
only weakly, and hence where population density is low or becoming
lower; if the breeding and feeding ranges of this species are
continuing to shift northward; and if range contraction is occurring.
The PDMP also provides response triggers to prompt additional
evaluation and appropriate response. If necessary, NMFS could increase
the sensitivity of status and trend monitoring; design research to
determine causes of changes in population trend or declines in pup
production or vital rates; work with States, tribes, or other entities
to exercise their regulatory authorities to alleviate known or
suspected threats; utilize the MMPA to protect the species and/or its
habitat; extend the monitoring period; re-evaluate the significance of
threats to the eastern DPS; or evaluate re-listing the eastern DPS of
Steller sea lion under the ESA.
Effects of the Delisting
This final rule will eliminate the protection afforded to the
eastern DPS of Steller sea lions under the ESA. It will not affect the
ESA status of the endangered western DPS of Steller sea lions. All
Steller sea lions will continue to receive protections under the MMPA.
Due to this final rule, Federal agencies will no longer be required
to consult with NMFS under section 7 of the ESA in the event activities
they authorize, fund, or carry out may affect the eastern DPS of
Steller sea lions. This rule does not remove or otherwise affect the
ongoing requirement for Federal agencies, pursuant to section 7 of the
ESA, to ensure that any action they fund, authorize, or carry out is
not likely to jeopardize the continued existence of the western DPS of
Steller sea lions or result in the destruction or adverse modification
of designated critical habitat.
Critical habitat for the Steller sea lion remains in effect for the
listed, endangered western DPS, as the designated critical habitat
continues to support the western DPS's important biological functions
(e.g., feeding and resting). NMFS will re-examine in a separate
rulemaking the existing critical habitat designation to consider any
new and pertinent sources of information, including the delisting of
the eastern DPS. In the interim, during ESA section 7 consultations for
federal actions that may affect currently designated Steller sea lion
critical habitat, NMFS will address effects to such habitat in terms of
effects to those physical and biological features essential to the
conservation of the western DPS.
The only regulatory changes resulting from this final rule that are
germane to the endangered western DPS of Steller sea lions are the
removal of the prohibition on the discharge of firearms at or within
100 yards of a Steller sea lion east of 144 [deg]W, and the
recodification of protections and exemptions for the western DPS
currently within 50 CFR 223.202 to 50 CFR 224.103.
ESA section 9 prohibitions apply to endangered species by operation
of law and may be extended to threatened species by regulation under
section 4(d) of the ESA. The section 9 prohibitions for eastern DPS
animals are removed with this final rule but section 9 prohibitions for
western DPS animals continue to apply. When we recognized two DPSs of
Steller sea lions, listed the western DPS as endangered, and listed the
eastern DPS as threatened, we extended the section 9 prohibitions to
the eastern DPS (62 FR 24345; May 5, 1997). Following publication of
this final rule, NMFS will separately consider whether additional
protection is needed for western DPS Steller sea lions in those parts
of their range east of 144 [deg]W. longitude.
Notwithstanding the deletion of 50 CFR 223.202 and the removal of
the prohibition against the discharge of
[[Page 66168]]
firearms at or within 100 yards of a Steller sea lion east of 144
[deg]W, the take of all Steller sea lions, including take by
harassment, will continue to be prohibited under the MMPA, unless
specifically authorized by NMFS or exempted from the MMPA's moratorium
on take.
A species or population stock that is listed as an endangered
species or a threatened species under the ESA is considered
``depleted'' and a ``strategic stock'' under the MMPA. Thus, the
delisting of the eastern DPS of Steller sea lion under the ESA will
likely lead to two modifications to classifications of the eastern DPS
of Steller sea lion under the MMPA: from its current classification as
a ``strategic stock'' and as a ``depleted'' species to a new
classification as a ``non-strategic stock'' and/or as not depleted. In
consultation with one or more of three regional Scientific Review
Groups, and following public review and comment, NMFS prepares annual
marine mammal stock assessment reports. The stock assessments reports
for ``strategic stocks'' are reviewed annually whereas those for non-
strategic stocks are reviewed every three years, or when new
information becomes available. Thus, if the eastern DPS (eastern
``stock'' under the MMPA) is reclassified as a non-strategic stock, the
review of its stock assessment report may become less frequent. NMFS
will consider redesignating the eastern stock of Steller sea lions as
non-strategic and not depleted under the MMPA following review by the
Alaska Scientific Review Group in 2014.
Description of Regulatory Changes
This final rule removes the eastern DPS of Steller sea lions from
the list of threatened species in 50 CFR 223.102.
Section 223.202 established various protective measures for
threatened eastern DPS Steller sea lions, including a specific
prohibition on discharging a firearm at or within 100 yards of a
Steller sea lion, a prohibition on vessel transit within 3 nautical
miles of specific Steller sea lion rookery sites, and a list of certain
exemptions to some of those same protections. We are deleting 50 CFR
223.202, and we are recodifying these protections and exemptions for
the western DPS as appropriate within 50 CFR 224.103.
Classification
National Environmental Policy Act (NEPA)
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir.
1981), we have concluded that NEPA does not apply to ESA de-listing
actions. (See NOAA Administrative Order 216-6.)
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analyses required by the Regulatory
Flexibility Act are not applicable to the de-listing process. In
addition, this rule is exempt from review under E.O. 12866. This final
rule does not contain a collection of information requirement for the
purposes of the Paperwork Reduction Act.
E.O. 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
directives for consultation in situations where a regulation will
preempt state law or impose substantial direct compliance costs on
state and local governments (unless required by statute). Neither of
those circumstances is applicable to this final rule.
E.O. 13175, Consultation and Coordination With Indian Tribal
Governments
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and co-management agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the Federal Government. This relationship has
given rise to a special Federal trust responsibility involving the
legal responsibilities and obligations of the United States toward
Indian Tribes and the application of fiduciary standards of due care
with respect to Indian lands, tribal trust resources, and the exercise
of tribal rights. E.O. 13175 outlines the responsibilities of the
Federal Government in matters affecting tribal interests. Section 161
of Public Law 108-199 (188 Stat. 452), as amended by section 518 of
Public Law 108-447 (118 Stat. 3267), directs all Federal agencies to
consult with Alaska Native corporations on the same basis as Indian
tribes under E.O. 13175.
NMFS has coordinated with Alaska Native communities regarding
eastern DPS of Steller sea lion management issues through the Sea Otter
and Steller Sea Lion Commission (TASSC). NMFS has briefed TASSC on this
delisting action at TASSC annual meetings and provided updates
regarding the timeline for the eastern DPS of Steller sea lion status
review. Prior to the release of the proposed rule, NMFS was in also in
contact with the Makah Tribe. Following publication of the proposed
rule, we notified the Columbia River Inter-Tribal Fish Commission and
the Makah Tribe. At various stages of the process from the notice of
initiation of the 5-year review through the publication of the proposed
rule, NMFS received comments, information, and/or other input from the
Columbia River Inter-Tribal Fish Commission, the Makah Tribe, and the
Northwest Indian Fisheries Commission. NMFS considered all of the
comments received from Alaska Native organizations and Pacific
Northwest tribal organizations at these various stages. We have
addressed those comments in this final rule. NMFS did not receive any
formal requests to consult on the proposed action.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://alaskafisheries.noaa.gov and is
available upon request from the NMFS office in Juneau, Alaska (see
ADDRESSES).
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 224
Endangered marine and anadromous species.
Dated: October 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Acting Deputy Assistant Administrator for Regulatory
Programs, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 224
are amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543.
[[Page 66169]]
Sec. 223.102 [Amended]
0
2. In Sec. 223.102, the table is amended by removing and reserving
paragraph (a)(2).
Sec. 223.202 [Removed]
0
3. Section 223.202 is removed.
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
4. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
5. In Sec. 224.103, revise paragraph (d) to read as follows:
Sec. 224.103 Special prohibitions for endangered marine mammals.
* * * * *
(d) Special prohibitions relating to endangered Steller sea lion
protection.--(1) General Prohibitions. The following regulatory
provisions shall apply to the western population of Steller sea lions:
(i) No discharge of firearms. Except as provided in paragraph
(d)(2) of this section, no person subject to the jurisdiction of the
United States may discharge a firearm at or within 100 yards (91.4
meters) of a Steller sea lion west of 144 [deg]W longitude. A firearm
is any weapon, such as a pistol or rifle, capable of firing a missile
using an explosive charge as a propellant.
(ii) No approach in buffer areas. Except as provided in paragraph
(d)(2) of this section:
(A) No owner or operator of a vessel may allow the vessel to
approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion
rookery site listed in paragraph (d)(1)(iii) of this section;
(B) No person may approach on land not privately owned within one-
half statutory mile (0.8 kilometers) or within sight of a Steller sea
lion rookery site listed in paragraph (d)(1)(iii) of this section,
whichever is greater, except on Marmot Island; and
(C) No person may approach on land not privately owned within one
and one-half statutory miles (2.4 kilometers) or within sight of the
eastern shore of Marmot Island, including the Steller sea lion rookery
site listed in paragraph (d)(1)(iii) of this section, whichever is
greater.
(iii) Listed sea lion rookery sites. Listed Steller sea lion
rookery sites consist of the rookeries in the Aleutian Islands and the
Gulf of Alaska listed in Table 1.
Table 1 to Sec. 224.103--Listed Steller Sea Lion Rookery Sites \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
From To
Island ---------------------------------------------------------------------------------------------- NOAA Notes
Lat. Long. Lat. Long. Chart
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Outer I.................... 59[deg]20.5 N......... 150[deg]23.0 W........ 59[deg]21.0 N........ 150[deg]24.5 W....... 16681 S quadrant.
2. Sugarloaf I................ 58[deg]53.0 N......... 152[deg]02.0 W........ 16580 Whole island.
3. Marmot I................... 58[deg]14.5 N......... 151[deg]47.5 W........ 58[deg]10.0 N........ 151[deg]51.0 W....... 16580 SE quadrant.
4. Chirikof I................. 55[deg]46.5 N......... 155[deg]39.5 W........ 55[deg]46.5 N........ 155[deg]43.0 W....... 16580 S quadrant.
5. Chowiet I.................. 56[deg]00.5 N......... 156[deg]41.5 W........ 56[deg]00.5 N........ 156[deg]42.0 W....... 16013 S quadrant.
6. Atkins I................... 55[deg]03.5 N......... 159[deg]18.5 W........ 16540 Whole island.
7. Chernabura I............... 54[deg]47.5 N......... 159[deg]31.0 W........ 54[deg]45.5 N........ 159[deg]33.5 W....... 16540 SE corner.
8. Pinnacle Rock.............. 54[deg]46.0 N......... 161[deg]46.0 W........ 16540 Whole island.
9. Clubbing Rks (N)........... 54[deg]43.0 N......... 162[deg]26.5 W........ 16540 Whole island.
Clubbing Rks (S).............. 54[deg]42.0 N......... 162[deg]26.5 W........ 16540 Whole Island.
10. Sea Lion Rks.............. 55[deg]28.0 N......... 163[deg]12.0 W........ 16520 Whole island.
11. Ugamak I.................. 54[deg]14.0 N......... 164[deg]48.0 W........ 54[deg]13.0 N........ 164[deg]48.0 W....... 16520 E end of island.
12. Akun I.................... 54[deg]18.0 N......... 165[deg]32.5 W........ 54[deg]18.0 N........ 165[deg]31.5 W....... 16547 Billings Head
Bight.
13. Akutan I.................. 54[deg]03.5 N......... 166[deg]00.0 W........ 54[deg]05.5 N........ 166[deg]05.0 W....... 16520 SW corner, Cape
Morgan.
14. Bogoslof I................ 53[deg]56.0 N......... 168[deg]02.0 W........ 16500 Whole island.
15. Ogchul I.................. 53[deg]00.0 N......... 168[deg]24.0 W........ 16500 Whole island.
16. Adugak I.................. 52[deg]55.0 N......... 169[deg]10.5 W........ 16500 Whole island.
17. Yunaska I................. 52[deg]42.0 N......... 170[deg]38.5 W........ 52[deg]41.0 N........ 170[deg]34.5 W....... 16500 NE end.
18. Seguam I.................. 52[deg]21.0 N......... 172[deg]35.0 W........ 52[deg]21.0 N........ 172[deg]33.0 W....... 16480 N coast,
Saddleridge Pt.
19. Agligadak I............... 52[deg]06.5 N......... 172[deg]54.0 W........ 16480 Whole island.
20. Kasatochi I............... 52[deg]10.0 N......... 175[deg]31.5 W........ 52[deg]10.5 N........ 175[deg]29.0 W....... 16480 N half of
island.
21. Adak I.................... 51[deg]36.5 N......... 176[deg]59.0 W........ 51[deg]38.0 N........ 176[deg]59.5 W....... 16460 SW Point, Lake
Point.
22. Gramp rock................ 51[deg]29.0 N......... 178[deg]20.5 W........ 16460 Whole island.
23. Tag I..................... 51[deg]33.5 N......... 178[deg]34.5 W........ 16460 Whole island.
24. Ulak I.................... 51[deg]20.0 N......... 178[deg]57.0 W........ 51[deg]18.5 N........ 178[deg]59.5 W....... 16460 SE corner,
Hasgox Pt.
25. Semisopochnoi............. 51[deg]58.5 N......... 179[deg]45.5 E........ 51[deg]57.0 N........ 179[deg]46.0 E....... 16440 E quadrant,
Pochnoi Pt.
Semisopochnoi................. 52[deg]01.5 N......... 179[deg]37.5 E........ 52[deg]01.5 N........ 179[deg]39.0 E....... 16440 N quadrant,
Petrel Pt.
26. Amchitka I................ 51[deg]22.5 N......... 179[deg]28.0 E........ 51[deg]21.5 N........ 179[deg]25.0 E....... 16440 East Cape.
27. Amchitka I................ 51[deg]32.5 N......... 178[deg]49.5 E........ 16440 Column Rocks.
28. Ayugadak Pt............... 51[deg]45.5 N......... 178[deg]24.5 E........ 16440 SE coast of Rat
Island.
29. Kiska I................... 51[deg]57.5 N......... 177[deg]21.0 E........ 51[deg]56.5 N........ 177[deg]20.0 E....... 16440 W central, Lief
Cove.
30. Kiska I................... 51[deg]52.5 N......... 177[deg]13.0 E........ 51[deg]53.5 N........ 177[deg]12.0 E....... 16440 Cape St.
Stephen.
31. Walrus I.................. 57[deg]11.0 N......... 169[deg]56.0 W........ 16380 Whole island.
32. Buldir I.................. 52[deg]20.5 N......... 175[deg]57.0 E........ 52[deg]23.5 N........ 175[deg]51.0 E....... 16420 Se point to NW
point.
33. Agattu I.................. 52[deg]24.0 N......... 173[deg]21.5 E........ 16420 Gillion Point.
34. Agattu I.................. 52[deg]23.5 N......... 173[deg]43.5 E........ 52[deg]22.0 N........ 173[deg]41.0 E....... 16420 Cape Sabak.
35. Attu I.................... 52[deg]54.5 N......... 172[deg]28.5 E........ 52[deg]57.5 N........ 172[deg]31.5 E....... 16681 S Quadrant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second
set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower
low water.
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(iv) Commercial Fishing Operations. The incidental mortality and
serious injury of endangered Steller sea lions in commercial fisheries
can be authorized in compliance with sections 101(a)(5) and 118 of the
Marine Mammal Protection Act.
(2) Exceptions--(i) Permits. The Assistant Administrator may issue
permits authorizing activities that would otherwise be prohibited under
paragraph (d)(1) of this section in accordance with and subject to the
provisions of part 222, subpart C of this chapter--General Permit
Procedures.
(ii) Official activities. The taking of Steller sea lions must be
reported within 30 days to the Regional Administrator, Alaska Region.
Paragraph (d)(1) of this section does not prohibit or restrict a
[[Page 66199]]
Federal, state or local government official, or his or her designee,
who is acting in the course of official duties from:
(A) Taking a Steller sea lion in a humane manner, if the taking is
for the protection or welfare of the animal, the protection of the
public health and welfare, or the nonlethal removal of nuisance
animals; or
(B) Entering the buffer areas to perform activities that are
necessary for national defense, or the performance of other legitimate
governmental activities.
(iii) Subsistence takings by Alaska natives. Paragraph (d)(1) of
this section does not apply to the taking of Steller sea lions for
subsistence purposes under section 10(e) of the Act.
(iv) Emergency situations. Paragraph (d)(1)(ii) of this section
does not apply to an emergency situation in which compliance with that
provision presents a threat to the health, safety, or life of a person
or presents a significant threat to the vessel or property.
(v) Exemptions. Paragraph (d)(1)(ii) of this section does not apply
to any activity authorized by a prior written exemption from the
Regional Administrator, Alaska Region, National Marine Fisheries
Service. Concurrently with the issuance of any exemption, the Assistant
Administrator will publish notice of the exemption in the Federal
Register. An exemption may be granted only if the activity will not
have a significant adverse effect on Steller sea lions, the activity
has been conducted historically or traditionally in the buffer zones,
and there is no readily available and acceptable alternative to or site
for the activity.
(vi) Navigational transit. Paragraph (d)(1)(ii) of this section
does not prohibit a vessel in transit from passing through a strait,
narrows, or passageway listed in this paragraph if the vessel proceeds
in continuous transit and maintains a minimum of 1 nautical mile from
the rookery site. The listing of a strait, narrows, or passageway does
not indicate that the area is safe for navigation. The listed straits,
narrows, or passageways include the following:
------------------------------------------------------------------------
Rookery Straits, narrow, or pass
------------------------------------------------------------------------
Akutan Island..................... Akutan Pass between Cape Morgan and
Unalga Island.
Clubbing Rocks.................... Between Clubbing Rocks and Cherni
Island.
Outer Island...................... Wildcat Pass between Rabbit and
Ragged Islands.
------------------------------------------------------------------------
(3) Penalties. (i) Any person who violates this section or the Act
is subject to the penalties specified in section 11 of the Act, and any
other penalties provided by law.
(ii) Any vessel used in violation of this subsection or the
Endangered Species Act is subject to forfeiture under section
11(e)(4)(B) of the Act.
* * * * *
[FR Doc. 2013-25261 Filed 11-1-13; 8:45 am]
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